Could Donald Trump use the Supreme Court to dispute the election result?

In the early stages of the US election vote count, President Trump made the stunning and false claim that he had triumphed over Joe Biden.

With millions of votes still to be counted, the incumbent president gathered supporters and aides at the White House and claimed that “ a very sad group of people” were trying to steal the election and there was a “fraud on the American nation”.

Hide Ad
Hide Ad

He said that he would go to the Supreme Court to get vote counting stopped, as the nail-biting contest continued.

“We want the law to be used in a proper manner,” he said. “So we will be going to the US Supreme Court, we want all voting to stop.”

Despite providing no evidence for his claims, the president’s rhetoric suggests that a legal battle could be set to ensue over the result of the election.

Can Trump take concerns to the Supreme Court?

Not immediately.

Trump’s campaign team would first be required to lodge legal action in the courts of hotly contested swing states.

Hide Ad
Hide Ad

The goal of such legal action would be to have votes, likely in favour of the Biden Camp, thrown out.

Due to the coronavirus pandemic and the safety measures brought in for voters, there have been complaints from the Republican party that voting conducted by certain methods shouldn’t be counted.

The Trump camp would likely seek to label voting methods as “unconstitutional” and fraudulent. The Supreme Court could then come into play, as they have the ability to invalidate a statute for violating a provision of the Constitution

Mr Trump, in September, said: “I think this will end up in the Supreme Court.”

Hide Ad
Hide Ad

“I’m counting on them to look at the ballots, definitely,” he later added.

Why is Trump alleging fraud?

Prior to the election Mr Trump has claimed – falsely – that there have been “big problems and discrepancies” with mail-in ballots as he pressed for a final total of the count on November 3.

But some states will continue to count mailed votes for days, and many see his warnings as an attempt to sow distrust in the election’s integrity.

With the Democrats dominating postal voting amid safety fears of travelling to the polls during the pandemic, critics believe the president is setting up a potential challenge on this front.

Hide Ad
Hide Ad

Mr Biden’s campaign is braced for the Republican to use the so-called “blue shift” in votes, where the Democratic tally increases as postal ballots are counted, to allege the election was stolen by fraud.

There have already been Supreme Court challenges this election over postal ballots in Pennsylvania and Wisconsin, but any major challenge is likely to be over some nuance that is not yet clear.

Has the Supreme Court intervened before?

Yes, and the judges were key in the outcome of the highly contested 2000 election between George W Bush and Al Gore.

The race was so close that it came down to the result in Florida, where the pair were separated by just a few hundred votes.

Hide Ad
Hide Ad

Bitter legal battles ensued and a recount saw rows over the validity of “hanging chads”, punch-card ballots that had not been fully perforated.

But a controversial Supreme Court ruling ended the recount, five to four in favour of Mr Bush, who won the election when his Democratic opponent conceded defeat.

Any legal battle this year could make that one look like a playground scrap, with feelings having reached such a fever-pitch that armed militias are a threat on America’s streets.

What’s the balance of the court?

That ninth justice, Amy Coney Barrett, is the third to be picked by Mr Trump.

Hide Ad
Hide Ad

That appointment last month, particularly controversial as it came so close to the election, swayed the conservative balance on the court to six justices against three.

Any decision down party lines, however, would risk further politicising the court and a key figure to watch would be chief justice John Roberts, who has sided with liberals on controversial issues.