Having predicted off and on for months that the president might claim victory on Election Night based on partial (and mostly Election Day) votes, I still watched in horror as he did just that in his early-morning remarks to a packed, hooting, unmasked East Room crowd.
Perhaps this was all just blustery spin, and the president isn’t going to abuse his authority to arbitrarily stop vote-counting in the states where legitimately cast mail ballots are likely to place Joe Biden ahead of him. But he did very specifically say, “We’ll be going to the Supreme Court. We want all voting to stop.”
Now obviously nobody is still voting at this point. Trump is presumably referring either (a) broadly to mail ballots already received but not yet counted or (b) more narrowly to mail ballots postmarked by Election Day that states have decided to accept although they will be received later. If the first premise is the case, there is no legal theory I can imagine whereby federal courts up to and including the Supreme Court would stop them from being counted. The usual Trump–Heritage Foundation claim that mail ballots are rife with fraud has been rejected so many times by so many courts that even the most partisan tribunal isn’t going to overturn a presidential election on that basis.
But the second claim — that extended state mail-ballot deadlines unconstitutionally extend the federal Election Day — is a theory quite a few conservative jurists have embraced. (Depending how you look at it, that number includes three or four Supreme Court justices.) That sort of challenge could be launched to stop the tabulation of mail ballots received after Tuesday in two of the states still unresolved at this point, North Carolina and Pennsylvania.
Here’s the key precedent in a disputed Supreme Court order two weeks ago:
In a much-anticipated order, the Supreme Court turned down a Republican petition to stop Pennsylvania’s own high court from extending the deadline for receiving mail ballots because of the pandemic … The Court split 4-4 along ideological lines, with Chief Justice John Roberts siding with the three remaining liberals after Ruth Bader Ginsburg’s death.
Pennsylvania Republicans contrived to appeal to the Supreme Court for emergency relief immediately after Justice Amy Coney Barrett’s confirmation, in hopes that she would break the tie in their favor. But she refused to participate in the decision on grounds she had not had time to review the case and the contending arguments.
Still, wary of a post-election challenge on the same grounds that Barrett might then consider, Pennsylvania election officials decided to segregate mail ballots received after Election Day to avoid the risk of the state’s entire election results being thrown out. Presumably that’s where Trump’s legal team will go, though it’s obviously unclear at this point that there are enough post–Election Day mail ballots to make a difference in the outcome.
There was another last-minute Republican effort to stop North Carolina election officials from extending mail-ballot deadlines there, but the Supreme Court — again, with Justice Barrett not participating — rejected the petition with three Justices dissenting, as SCOTUSblog reported:
[T]the justices turned down the requests without explanation, leaving the extended deadline in place. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch indicated that they would have blocked the extension of the deadline.
Justice Brett Kavanaugh, who joined the conservative bloc in a Wisconsin mail-ballot-deadline decision wherein he also seemed to sympathize with the president’s hostility to post–Election Day results, didn’t make his own position clear in the North Carolina case. Perhaps Team Trump thinks a Barrett-fortified Court would keep that state from counting enough ballots to award its 15 electoral votes to Biden.
This is all guesswork, beyond the president’s clear indication that he doesn’t want to allow all legal votes to be counted and reported, on the specious grounds that a ballot postmarked by Election Day is somehow cast afterward. I suppose it’s a small victory that he’s talking about going to court rather than inciting violence or using his own powers to suppress vote-counting by brute force. But we may be into banana-republic territory nonetheless.