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The U.S. Supreme Court.
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Donald Trump claimed victory in the early hours of Wednesday, despite millions of votes remaining uncounted in several battleground states that will determine the ultimate outcome of the race.
The president has alleged fraud in election results and vowed to contest the election in the Supreme Court, saying, “we want all voting to stop.”
But, experts say, voting has already stopped, though counting of votes has not, and Trump is on thin legal grounds if he hopes to have federal courts stop the counting of ballots.
As Ned Foley, constitutional law professor at Ohio State University, wrote on Twitter Wednesday:
Counting has been particularly slow in the states of Wisconsin, Pennsylvania and Michigan, where state law barred election officials from counting or in some cases even preparing ballots to be counted, until Election Day.
“The Trump end playbook has become increasingly clear: attack the counting of ballots after election night—even if they’ve arrived by Election Day—and prematurely declare victory,” Rick Hasen, an election law expert and law professor wrote in Slate Sunday, adding that this strategy is “unlikely to work.”
“There has never been any basis to claim that a ballot arriving on time cannot be counted if officials cannot finish their count on election night,” he added.
Follow live coverage: Trump, Biden race goes into overtime as battleground states hang in balance
That said, the vote count in states like Wisconsin and Nevada are close enough that Trump could conceivably overcome the former vice president’s lead in those states, possibly through a vote recount. And if that happens, all eyes will be on Pennsylvania, where the president leads by hundreds of thousands of votes as of late Wednesday morning, though more than a million mail-in ballots remain uncounted.
Daniel Mallinson, professor of public policy and administration at PennState Harrisburg told MarketWatch that the count there could end up being close enough that a dispute over whether ballots received after Election Day can be counted could be decisive.
“Cleary a big fight is going to be over any ballots that came in after 8 p.m. last night,” when polls closed in Pennsylvania, he said. “The Supreme Court has all but signaled it is willing to look into the question” of whether mailed ballots that were cast before Election Day, but arrived after polls closed should count.
In September, the Pennsylvania Supreme Court ruled that mailed ballots postmarked by Election Day and received by county election boards by 5 p.m. on Nov. 6 must be counted. It also said that ballots lacking a clear postmark should be counted, absent evidence that they were mailed after polls closed. It is unknown how many such ballots have been cast and remain uncounted, Mallinson said.
The U.S. Supreme Court upheld that ruling in a 4-4 split, but with the accession of Justice Amy Coney Barrett to the Supreme Court, it’s possible the case could be revisited and the ruling reversed.
“We are obviously leading a full-court press to make sure that we have all of our legal teams … in place,” said Jason Miller, a senior adviser to the Trump campaign, in a conference call with reporters on Wednesday morning, adding that “we want to make sure that illegally cast ballots are not counted.”
Trump campaign manager Bill Stepien said on the same call that “if we count all legally cast ballots, we believe the president will win.”
The Biden campaign is also preparing for a tough legal battle and believes it has the winning legal argument. Top Biden lawyer Bob Bauer told CNN that President Trump’s lawyers have not shown up at the Supreme Court as the president said they would.
If they do, “He will be in for one of the most embarrassing defeats a president has ever suffered,” he said.
