Long-time GOP election lawyer Jan Baran was asked to analyze Trump’s comment and said, “I have no idea – and I don’t think he will either.”
On Wednesday afternoon, the president still had a path to victory, but it narrowed significantly after Democratic presidential candidate Joe Biden won Arizona and increased his profits in Michigan and Wisconsin.
Trump campaign officials had little to say about the Supreme Court on Wednesday, despite announcing plans to seek a recount in Wisconsin, where Trump had about 20,000 votes behind Biden.
Baran said it was a long shot, judging by history. He said he didn’t know about a national race where a recount was approaching so many votes.
“There are legal mechanisms, but you need some evidence and some facts and legal arguments,” Baran said. “Twenty thousand votes? Who knows what you can find under the rug or behind the couch that shows up. It is possible.”
The only case about voting deadlines that could be set in the Supreme Court right now is from Pennsylvania, where Democrats and Republicans have been fighting over an extension to accept postal ballot papers postmarked on or before election day three days after the election. But even if Trump somehow managed to prevent the state from ending its vote, the state’s 20 electoral votes would not be enough to surpass him on the electoral college.
As such, the president would likely have to expand the litigation to at least one other state to keep going. It is not immediately clear which state would be a fruitful target for him.
Most of the other states that have recently been legally jockeyed in the High Court appear to be in Trump’s column (North Carolina, for example). While Trump could benefit from a Wisconsin recount, the Democrats lost a court battle over late-arriving ballots. It is therefore unclear what new lawsuits could be filed to cut off the ballot table, or how they would reach the Supreme Court.
Another, perhaps insurmountable, legal challenge facing Trump is that even if the Supreme Court ultimately decides that an amendment like the Pennsylvania three-day amendment was unconstitutional, there are indications that a majority in the court might order the counting of those ballots anyway .
“I don’t want to speculate on how the court would rule, but the argument that voters were relying on the rules on and before election day and should therefore count their votes is very strong,” said Dan Tokaji, dean of the university of Wisconsin Law School.
The best clue to the uphill battle Trump is facing could be the Supreme Court’s approach earlier last month to a lawsuit over a federal court order blocking South Carolina’s request for a witness to sign absentee ballots. The Republicans prevailed in this battle when the Supreme Court reinstated the usual rule.
The Supreme Court decision, however, had what appeared to be a minor caveat that voters who had already submitted their postal vote without a witness’s signature would not have ruled against it. The judges even added – seemingly out of nowhere – a two-day grace period from their decision to allow those untrained ballot papers to reach election officials.