Among many of the inaccurate and misleading statements President Donald Trump made during his East Room remarks early Wednesday morning was a claim that “we will be going to the U.S. Supreme Court” to halt the counting of votes in those states in which no final projection has been made.
There’s no actual mechanism for anyone, including the president, to “go to” the U.S. Supreme Court and get the court to stop a state’s vote counting.
Although thousands of words could be written about everything that’s wrong with this statement (to say nothing of the rest of his speech), there are two critical, practical flaws that are worth emphasizing: First, there’s no actual mechanism for anyone, including the president, to “go to” the Supreme Court and get the court to stop a state’s vote counting. Second, as the results from that count become clearer, the actual legal mechanisms that are available to the president are increasingly unlikely to change the outcome of this election. Whether or not the Supreme Court may otherwise be inclined to help Trump in an appropriate case, the odds that it will be in any position to do so are getting longer by the minute.
As a general rule, the Supreme Court is primarily an appellate court — meaning that virtually all of the cases it hears start in a state or federal trial court and work their way up to the justices through state or federal appellate courts. Although the court has what’s called “original” jurisdiction for a small class of cases, a candidate’s challenge of election results doesn’t come within a country mile of that category. Simply put, the only way the Supreme Court could step in here is to review what a lower state or federal court already decided — just as it did with the Florida Supreme Court in Bush v. Gore in 2000.
More fundamentally, there’s no plausible legal argument for ordering states to stop their initial count, which is what is still going on today. No state finishes counting on Election Day — even states where races are called by the media — and there is just no remotely plausible legal argument for why an initial count should be halted (rather than challenged, once it’s complete). That’s why, at least thus far, the lawsuits that have been filed are almost entirely about marginal issues — such as the validity of mail-in ballots that arrive after Election Day or the efforts in some states that allowed some voters to “cure” defective ballots if they did so by Election Day.
The Trump campaign sought to intervene in the Supreme Court on Wednesday in a case raising the validity of late-arriving mail-in ballots. But because Pennsylvania is storing those separately, that shouldn’t affect the count of mail-in ballots that were received by Election Day.
However those lawsuits are resolved, states would still continue their counts. Only one suit so far has directly challenged the count — in Michigan, where the Trump campaign’s complaint appears to be not about the count itself, but about its access thereto.
Even if the challenges prevail, the count would continue. Indeed, given that some state legislatures (including in Michigan, Pennsylvania and Wisconsin) prohibited “pre-canvassing” of votes, many of the ballots that will be counted last were actually those that came in first — through early in-person or mail-in voting. That they’re counted last is completely unrelated to whether they should be counted at all. Courts know that, even if Trump doesn’t.
The only slightly more likely scenario for a Supreme Court case would be a true redux of Bush v. Gore — where the sole tipping-point state is so preposterously close that everything hangs on the results of a recount, and how the recount is conducted provokes litigation. But whereas the final margin in Florida in 2000 was 537 votes, the margin in Wisconsin as of the middle of Wednesday appears to be 38 times greater — just over 20,000 votes — and that assumes Wisconsin ends up as the tipping point. (Former Vice President Joe Biden is the apparent victor in Wisconsin, according to NBC News.)
Even former Wisconsin Gov. Scott Walker has tweeted that such a large margin would be a “high hurdle” for a successful recount, noting that prior recounts in Wisconsin have shifted margins by only a few hundred votes, at most. To that end, even if there is litigation over how the recount is conducted, it’s hard to see how such litigation could materially alter these results.
Formally, the Supreme Court could still hear an appeal in one of these cases even if the bottom-line result wouldn’t make a difference. But practically, it’s impossible to imagine the justices having any interest in intervening if the Electoral College result would be unaffected. So even if the results in Pennsylvania or North Carolina or Georgia ends up in court, there would be no imperative for the Supreme Court to intervene if Biden already has 270 electoral votes in his column from elsewhere. That’s why it’s right to pay so much attention in the next 24 hours to Nevada and Michigan (which NBC News has now called for Biden). If Biden ends up winning both of those states by, say, 10,000 votes, it’s hard to see how a single lawsuit could upend his national victory. (No recount in a presidential election has ever swung results by more than 1,300 votes.)
Ironically, we may have the court itself to thank for that. Among the flurry of emergency applications the justices heard before the election was a case from Wisconsin, where a federal district court had ordered the state to extend the deadline for receipt of mail-in ballots to Nov. 9. The federal appeals court in Chicago issued a stay of that ruling, and by a 5-3 vote (with the three progressives in dissent), the Supreme Court refused to lift the stay.
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There are reasons to take issue with many of the arguments that the court’s conservative justices offered in separate concurring opinions for leaving the extension on hold. What’s more, had the Supreme Court come out the other way, Wisconsin might not have even been this close. But because the result in Wisconsin does not include a large group of ballots over which there was at least some plausible challenge, the specter of litigation calling that result into question is minimal, at best. That may be too bad for Trump, but it might be a very good thing for the rest of us — including the justices themselves.
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