The Supreme Court could yet try to have the last word on the 2020 presidential election even in the face of decisive vote margins favorable to Joe Biden in two critical states unlikely to be tipped in Trump’s favor in any eventual recounts.
The Court’s necessarily slow-motion intervention in the one post-election case to reach the justices so far would do the country no good, but would serve President Trump’s purposes of sowing doubts about Biden’s victory and preserving Trump’s influence over a political base likely to adopt a “Lost Cause” resistance to the Biden presidency.
Biden was “declared” to be the next president of the United States on Saturday [Nov. 7] after the unofficial election desks at CNN, MSNBC, and even Fox News awarded Pennsylvania to Biden to push him up to 273 ostensibly confirmed electoral votes. Fox added Arizona and Nevada to raise the total to 290. The apparent results must be treated as tentative for now, pending potential shenanigans in Congress if Republican legislatures in Democratic-voting states try to present competing slates of electors.
Trump’s legal team was busy all week after Election Night (Nov. 3) looking for evidence of vote fraud with nothing much to show for their efforts . Trump and his lawyers could do the country a great service by calling the litigation barrage off now rather than dragging it out further with disorder in the streets and the inevitable risk of violence between at-war political tribes.
At week’s end, Justice Samuel A. Alito Jr. signaled that the Court may want to issue the final word on the results in the Keystone State from One First Street instead of allowing Pennsylvania’s elected officials to make the decision in Harrisburg. Alito appeared to be reflecting the same mindset that Justice Antonin Scalia adopted two decades ago in opining that the Supreme Court had to have the final say on the disputed Bush v. Gore election.
The Court’s potential jurisdiction in the Trump-Biden race stems from suits by the state’s Republican legislators among others challenging the Pennsylvania Supreme Court’s decision to extend by three days the deadline for receiving ballots mailed by Election Day. The state court viewed the extension as a needed accommodation in the midst of a pandemic that made in-person voting hazardous to health.
Alito issued an order directing county election boards to comply with guidance already issued by the state’s secretary of state to segregate the late-arrived ballots and to “take no action” in regard to those ballots pending further developments. The justices are still considering the Pennsylvania Republicans’ petition for certiorari to review the Pennsylvania court’s decision on the basis of full briefing and oral arguments. That process would inevitably entail at least another week’s delay or perhaps much longer.
The networks called Pennsylvania for Biden after his lead over Trump reached 34,000. That margin is too large to be overturned in any recount, according to Richard Hasen, the nationally prominent election law expert at the University of California-Irvine. The suit “would only matter if the election were close enough that late counting ballots would make a difference,” Hasen wrote in a blog entry posted on Saturday. “They won’t, based on everything we know.”
Hasen was one of three election law experts who were scoffing at the Trump legal team’s lawsuits as the week ended. In comments on NPR’s All Things Considered [Nov. 6], Northwestern law professor Michael Kang dismissed the litigation as “political theater.” Two days earlier, New York University law professor Richard Pildes wrote in an op-ed in the New York Times that the suits filed thus far “are highly unlikely to affect the overall outcome of the election.” In his blog entry, Hasen dismissed the Trump suits as “tinkering around the edges.”
In the meantime, Georgia’s Republican secretary of state, Brad Raffensperger, confirmed that the state would follow the law in directing a recount in the Trump-Biden balloting because Biden's 7,000-vote lead was within the margin to trigger a mandatory recount. With 16 electoral votes, Georgia is not essential to Biden’s apparent supermajority of 306 electoral votes.
With the decisions from the networks, Biden spoke to the nation from Wilmington late Friday night to make a very tentative claim of victory. Based on the results so far, Biden declared, “We’re going to win this race with a clear majority.” In his first tweet as president-elect the next day, Biden struck a much different note than the outgoing president in his tweets. Biden declared himself “ready to build back better for all Americans.”
Trump, fuming inside 1600 Pennsylvania Avenue, was nowhere ready to concede the election, but seemingly determined to wage a fight to the bitter end in state and federal courts around the country up to and including the Supreme Court. Harmeet Dhillon, one of the lawyers, went so far on Fox News as to put the monkey right on the Supreme Court’s back. "We're waiting for the United States Supreme Court—of which the President has nominated three justices—to step in and do something,” Dhillon, a former vice chair of the California Republican Party, said. “And hopefully Amy Coney Barrett will come through."Early in the week, Republicans with reputations to protect were voicing doubts about Trump’s baseless claims of voter fraud, delivered from the White House press room on Tuesday [Nov. 3]. Appearing on CNN, the GOP’s most experienced election lawyer Benjamin Ginsberg said on Thursday [Nov. 5] that he had yet to see any evidence of fraud. By week’s end, however, GOP politicians with electoral prospects to protect—including Texas’s GOP senator Ted Cruz and South Carolina’s re-elected Republican Lindsey Graham—were starting to second Trump’s doubts, rather than face scornful tweets from Trump’s adult sons: Don Jr. and Eric.
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