How Trump can and can’t use the courts to shape the election

November 3, 2020, 9:04 PM UTC

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President Trump told a campaign rally on Sunday that “we’re going in with our lawyers” as early as election night. The remark is just the latest in a series of declarations by Trump that he expects the courts to help him secure an election victory—the most notable coming during his push to confirm Justice Amy Coney Barrett.

“I think this will end up in the Supreme Court. And I think it’s very important we have nine justices,” said Trump in September, implying that those he nominates to the bench will side with him in a potential dispute.

Such comments portray the judiciary as just one more forum for partisan politics at a time when the country is boiling over with them. And for some Democrats, Trump’s words spark fears he could win the election in court even if he loses at the ballot box.

The reality is more nuanced. While the courts will play a role in this week’s vote, there’s nothing unusual about that since, historically, both Republicans and Democrats have filed a flurry of lawsuits around Election Day.

“There are likely lawsuits already over what’s happening in some county courthouses. You can expect a lot of legal action today and the rest of the week,” says Henry Olsen, a conservative lawyer and political author who publishes a well-regarded election forecast.

Such lawsuits, Olsen says, have historically involved everything from emergency requests by Democrats to keep polling stations open late to Republicans challenging signatures on ballots.

While election lawsuits may be common, this year is nonetheless different in light of the Trump campaign pursuing an explicit plan to suppress as many votes as possible and use the resulting litigation to sow doubt about the election’s validity.

Longtime GOP election lawyer Ben Ginsberg described this strategy in a recent editorial in the Washington Post: “[Trump’s] only solution has been to launch an all-out, multimillion-dollar effort to disenfranchise voters—first by seeking to block state laws to ease voting during the pandemic, and now, in the final stages of the campaign, by challenging the ballots of individual voters unlikely to support him.”

In practice, this means supporting a law in the critical swing state of Pennsylvania that bars the counting of mail-in votes prior to election, while also suing to halt the counting of ballots received after Election Day—even though the state’s law makes clear ballots received by Nov. 6 will be counted.

Such tactics echo earlier eras when political parties sought to prevent people from exercising their right to vote. But there’s a difference in how the Trump campaign is going about this compared to those previous efforts.

According to Erin Geiger-Smith, author of the new book Thank You for Voting, those seeking to suppress the vote used to rely on explicitly discriminatory laws, such as ones requiring voters to pay a poll tax or others that made Native Americans ineligible to vote. But since the Voting Rights Act of 1965, which made many such practices illegal, Republicans have turned to technical measures, such as disputing postmarked ballots, to reduce voter turnout—measures that can nonetheless feel like disenfranchisement.

“There’s Black and brown people who’ve felt that way for a long time, and now a lot of other people are having to focus on this in ways they haven’t before,” says Geiger-Smith.

But despite the Trump campaign’s attempt to enlist the courts in a blatant attempt to suppress voting, it doesn’t mean the strategy will be effective.

His campaign can’t bring a generalized complaint to the Supreme Court that the election was “rigged” or “unfair.” The campaign must point to a specific incident in a specific place—as occurred in 2000 when President George W. Bush’s campaign persuaded the top court to halt counting of disputed ballots in Florida.

The Supreme Court’s 5-4 ruling in Bush v. Gore has haunted Democrats and raised fears a similar result could transpire in the coming weeks. But Olsen says this is unlikely, in part because the justices made explicit in the decision that the ruling was not meant to set a precedent. Also, as one columnist notes, the 2000 decision came in response to a situation when it may have been impossible to know for sure who won the election—leading the justices to craft a ruling in order to end the uncertainty. While the Trump campaign may seek to create a similar climate of legal uncertainty—or outright chaos—this will only be possible in the event of a genuine nail-biter in Pennsylvania or another battleground state that could tip the Electoral College vote.

A final bulwark against Trump trying to game the court is the law itself and the judges who interpret it. Olsen notes that the media may cast judges as political actors, but, in reality, they are constrained by the laws and previous rulings.

“A judge that does his or her job knows that they don’t get to play Superman with a voting procedure,” say Olsen, adding that judges know they can be overruled by a higher court, an outcome that many regard as embarrassing.

Olsen points to a ruling this week by a federal judge in Texas that came in response to a request to toss out thousands of ballots cast from cars. Even though the judge is known as a strident conservative, and though the case was brought by GOP operatives, he summarily dismissed it.

As for the Supreme Court, which would rule on any urgent cases within a matter of weeks, Olsen notes that Chief Justice Roberts has long been reluctant to settle political disputes with judicial power. Roberts and the other justices are also likely to follow the practice of granting deference to state courts when it comes to interpreting their own states’ laws and constitution—a practice that makes it less likely the Supreme Court will hand down a thunderbolt ruling to award the election to Trump.

Meanwhile, Olsen predicts that Justice Barrett—who Trump has been casting as a ringer for his side in any dispute—will be deeply reluctant to begin her Supreme Court career by casting the deciding vote in a 5–4 case that settles the election. And of course, a high stakes Supreme Court fight is unlikely in the first place, especially if one candidate emerges with a clear majority of electoral votes.

All of this means that while Trump may use lawsuits to cast doubt on the legitimacy of the election, the courts are unlikely to directly help his cause.

“There will be a lot more law than politics,” says Olsen, though he adds the temptation for judges to get political will increase the higher the stakes become.

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