Katharine Valencia*

Versión en español aquí.

On Saturday, November 7 – four days after Election Day – most major media outlets reported that Joe Biden was the projected winner of the presidential race against incumbent Donald Trump. It is standard practice in the US for elections to be called based on unofficial vote tallies reported by states, before being officially certified several weeks later. According to current popular vote tallies, Biden received about 5.5 million more votes than Trump; but more importantly, Biden is projected to cross the threshold of 270 votes in the electoral college (the proportional state-based system for electing the president) required to win. In normal times, this would result in the losing candidate conceding the race, and the process of certifying votes would be little more than a formality in terms of the final outcome.

However, we do not live in normal times and Donald Trump is anything but a typical president. Trump declared that it is he who is the winner, and that massive fraud had occurred in swing states where tallies showed that Biden had prevailed. Indeed, Trump had signaled for months that he would not concede and that he could only lose if the election was rigged. The Trump campaign and the Republican party have filed multiple lawsuits before and after the election to contest the validity of certain ballots. In the public sphere, Trump and his supporters continue to allege widespread voter fraud, without evidence. This post will provide an overview of the current state of election litigation and consider the likelihood that the US Supreme Court could play a decisive role.

The Covid-19 pandemic’s impact on voting patterns

The election of November 3, 2020 in the United States was historic for many reasons. There was record turnout of over 160 million voters, or about 2/3 of the eligible voting population. (This is especially notable given that voter registration is not compulsory or automatic in the US, unlike most of Latin America.) Moreover, the election took place during the ongoing Covid-19 pandemic, resulting in drastic changes to typical voting habits. To avoid having large crowds of voters congregate, many states modified their election procedures, allowing for expanded in-person early voting (beginning up to several weeks before the official Election Day of November 3) and making it easier – in some cases automatic – to receive a mail-in ballot. Although it existed on an unprecedented scale this year, it is worth noting that mail-in voting is an established and completely valid practice in the US – another difference from Latin America, where voting by mail is not currently an option.

Reflecting drastically different approaches to the pandemic – Trump has repeatedly tried to downplay its severity while Biden has called for much greater government intervention to stop it – the Democratic party and the Biden campaign encouraged supporters to vote early or by mail. In contrast, Trump spoke out frequently against voting by mail, alleging that it was opening the door to wide-scale fraud. This was despite the fact that both liberal and conservative election experts agree there is simply no evidence of widespread voter fraud being a problem in the modern-day United States.

It is believed that as a result of the divergent approaches of the political parties, most mail-in and early votes were cast for the Biden-Harris ticket, versus more in-person Election Day votes to reelect President Trump and Vice President Pence. This in turn resulted in President Trump appearing to be ahead on Election Day in states where in-person votes were tabulated prior to early or mail-in votes. By the morning of November 4, the day after the polls closed, it became clear that Biden was gaining on Trump as the mail-ballots began to be opened and counted. Although this dynamic was foreseeable, Trump questioned the legitimacy of his change in standing. Soon after, he began to decry that there had been outright fraud and his campaign began to present legal challenges in key states where the vote margins were close. He has continued to do so despite the fact that election officials of both parties, and Trump’s own Department of Homeland Security, have declared that the election was “the most secure in American history.”  

Election litigation overview

Given the lack of evidence of widespread fraud, it is perhaps not surprising that many of the legal arguments made by Trump’s lawyers have either not held up in court or have been summarily dismissed. For example, on November 13 a judge in Michigan stated that allegations of fraud in the suit before him were “incorrect and not credible” and “rife with speculation.” The week prior, a separate lawsuit seeking that ballot counting be stopped was dismissed in the same state because the judge found the testimony proffered by Trump campaign regarding alleged fraud by poll workers to be “inadmissible as hearsay within hearsay,” and other evidence to be “vague and equivocal.” Meanwhile, in Georgia, another lawsuit seeking to stop the vote count was dismissed because the judge found that the Trump campaign had provided no evidence that the ballots in question were illegitimate.

In other cases, the lawyers representing Trump and/or the Republican party have not even argued that there has been fraud, in sharp contrast to the arguments put forth in the public discourse. On November 13, a Pennsylvania state court judge rejected five complaints by the Trump team, noting that they were not actually “contending that there has been fraud [nor] that there is evidence of fraud”. A few days earlier in the same state, a Trump campaign lawyer reluctantly admitted to the judge under questioning that he was not alleging fraud regarding disputed ballots.

Furthermore, many of the suits have dealt with relatively small vote margins – meaning that even if a judge agreed to invalidate the ballots in question, they would not be enough to change the outcome. Indeed, the Trump campaign recently a dropped lawsuit in Arizona, recognizing that the margin of Biden’s lead was too wide for their suit to make a difference even if successful.

All of the aforementioned begs the question, why are the lawsuits being filed at all? The answer seems two-fold. First, the allegations of fraud feed into Trump’s narrative of grievance against perceived political insiders, and are consistent with his frequent disparagement of “Democrat-run cities”, places that proved to be key in contributing to a Biden victory in several states, in large part due to high turnout in Black communities. Most observers expect that even if Trump eventually concedes, he will continue to claim that the election was stolen from him for the foreseeable future to keep his base riled up and possibly mount a comeback campaign in 2024. In the short term, the Republican party leadership seems to be indulging Trump’s claims both to appease his supporters nationwide and more specifically to energize conservative voters in Georgia, where upcoming runoff elections will determine the balance of power in the Senate.

Second, reports indicate that the Trump campaign is trying to block the certification of votes –  due to supposed fraud or other irregularities – to cause delays down the line and possibly enable state legislatures to appoint pro-Trump electors to the Electoral College, despite the popular vote in their state going for Biden. It seems unlikely that the judiciary would block vote certification in the absence of evidence of widespread fraud, but that fact that such a shockingly anti-democratic outcome is even in the realm of possibility is deeply troubling.

Will SCOTUS weigh in?

There was lot of speculation in the weeks and months leading up to the election about the potential role of the Supreme Court in determining the election’s outcome, and Trump implied that he would take his fight all the way to that high court in a combative post-election speech. This issue received extra scrutiny in the context of the appointment of Trump’s nominee, Amy Coney Barrett, to the Supreme Court just weeks before the election. Trump and Pence had specifically said that they wanted Coney Barrett on the Court to adjudicate election litigation. During her confirmation hearings, Coney Barrett would not commit to recusing herself on election matters, although she did choose not to rule on two election-related cases just days after joining the court.

Another reason that the Supreme Court looms large in the public’s imagination is the fact that a presidential election was indeed decided by that body in recent memory, in the case of Bush v. Gore. In the year 2000, George W. Bush was ahead by a razor-thin margin of 1,784 votes in Florida, where a recount was underway (the margin eventually narrowed even further). In a 5-4 decision, the Court ordered the recount to end before completion, effectively cementing Bush’s lead. The candidates’ electoral vote margin was also so close that everything depended on the outcome in Florida, so the judgment in favor of Bush effectively handed him the presidency. The order was extremely controversial and continues to be viewed with skepticism and criticism of the majority opinion’s legal reasoning today.

The lack of evidence of widespread fraud and the overall lack of success of the Trump campaign lawsuits thus far make it seem unlikely at the time of writing that the Supreme Court will be presented with a case or controversy that has the potential to change the election’s outcome along the lines of Bush v. Gore. For that to happen, given Biden’s wide electoral vote margin, the Supreme Court would need to accept multiple cases and then overturn the election results in several states. This makes it entirely different from Bush v. Gore, which did not overturn election results but rather maintained the status quo (Bush’s lead), and dealt with only one state with an extremely small vote margin. While it is not outside the realm of possibility and it must be noted that the Supreme Court is more conservative now than 20 years ago, it is still unlikely that the justices would want to undertake such controversial and unprecedented actions, especially considering the continued backlash against Bush v. Gore.

The Supreme Court has actually already addressed a voting issue post-election. On Nov. 6, Justice Samuel Alito ordered Pennsylvania to segregate ballots received after Election Day and referred the matter to the Court as a whole. However, the Court has yet to take further action, causing observers to wonder if it will refrain from pronouncing again on the 2020 election unless absolutely necessary.  Furthermore, the number of ballots set aside per Alito’s order ended up being relatively small and not enough to change the outcome in Pennsylvania, where Biden prevailed.

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In conclusion, while anything remains possible, it does not seem likely that the results of the 2020 presidential election will be fundamentally altered by litigation. However, this does not mean that the litigation has not had an impact. On the contrary, for those who do not closely follow the minutiae of court proceedings, it has provided the veneer of legitimacy to Trump’s baseless claims of fraud. As evidence of this, over the weekend thousands of Trump supporters descended on DC to protest what they see as a stolen election. Most sitting Republican members of Congress have not yet recognized Biden’s win, and government resources and security briefings that should be available to the President-elect are being held up by Trump appointees. Therefore, the litigation, while unsuccessful in court, has nonetheless been highly successful in sowing more division, instability, and uncertainty in American society and the political arena.

*Senior Legal Advisor, DPLF

Photo: Supreme Court of the United States / Pixabay