WASHINGTON — President Donald Trump has made various comments Wednesday regarding the yet-to-be-called presidential race, including that he’ll take the election to the Supreme Court and that absentee ballots currently being counted are a ‘surprise.’
“We’ll be going to the U.S. Supreme Court — we want all voting to stop,” Trump said early Wednesday.
It’s unclear what he means by taking the election to the high court or voting ceasing, since vote tabulations routinely continue beyond Election Day in the U.S., and states largely set the rules for when the count has to end.
Additionally, the voting is over. It’s only counting that is taking place across the nation. No state will count absentee votes that are postmarked after Election Day.
Democratic challenger Joe Biden’s campaign called Trump’s statement “outrageous, unprecedented, and incorrect.”
Later Wednesday morning, the president also questioned how he was leading “solidly” in many key states, but his lead “magically disappeared” due to what he called “surprise ballot dumps” being counted. It appears that he is referring to the counts going on across the country of the more than 100 million early and absentee votes that occurred prior to Election Day.
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“If the president makes good on his threat to go to court to try to prevent the proper tabulation of votes, we have legal teams standing by ready to deploy to resist that effort,” Biden campaign manager Jen O’Malley Dillon said in a statement. “And they will prevail.”
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Election law expert Richard Hasen wrote in Slate on Sunday that “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.”
Ohio State University election law professor Edward Foley wrote on Twitter on Wednesday: “The valid votes will be counted. SCOTUS would be involved only if there were votes of questionable validity that would make a difference, which might not be the case. The rule of law will determine the official winner of the popular vote in each state. Let the rule of law work.”
In any event, there’s no way to go directly to the high court with a claim of fraud. Trump and his campaign could allege problems with the way votes are counted in individual states, but they would have to start their legal fight in a state or lower federal court.
There is a pending Republican appeal at the Supreme Court over whether Pennsylvania can count votes that arrive in the mail from Wednesday to Friday, an extension ordered by the state’s top court over the objection of Republicans. That case does not involve ballots already cast and in the possession of election officials, even if they are yet to be counted.
The high court refused before the election to rule out those ballots, but conservative justices indicated they could revisit the issue after the election. The Supreme Court also refused to block an extension for the receipt and counting of absentee ballots in North Carolina beyond the three days set by state law.
Even a small number of contested votes could matter if either state determines the winner of the election, and the gap between Trump and Biden is so small that a few thousand votes, or even a few hundred, could make the difference.
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