Make frivolous litigation great again? Where things stand with the Trump campaign’s election lawsuits and the potential role of the Supreme Court

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.

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