President Donald Trump spent election night doing what everyone expected him to do: baselessly claiming that the vote counts were fraudulent and issuing vague legal threats on that basis. “This is a major fraud in our nation,” he said as the results in key states began slowly trending in Biden’s direction after midnight, as expected. “We want the law to be used in a proper manner. So we’ll be going to the U.S. Supreme Court. We want all voting to stop. We don’t want them to find any ballots at four o’clock in the morning and add them to the list.”
Unfortunately for Trump, his long-anticipated threat of using the high court to decide the election is not as straightforward as he thinks. The Supreme Court is not an Old West saloon with swinging doors through which Trump can dramatically barge in, grabbing the attention of a grizzled barkeep. He would need to have a specific case at hand that would allow him to contest the results or perhaps even swing them in his favor. His avenues for legal action are far from clear so far.
As of Wednesday afternoon on the East Coast, former Vice President Joe Biden has command of the board. He currently holds a strong lead in Arizona and a narrow lead in Nevada, each with few opportunities for Trump to receive large shares of the remaining vote. Of the big three Rust Belt states that Trump won by razor-thin margins in 2016, Biden is currently leading in Wisconsin by roughly 20,000 votes with virtually all ballots counted and the race officially called, and in Michigan with a substantial number of mail-in ballots left to count. If those leads hold, Biden could cross the 270-vote threshold in the Electoral College without winning the three other uncalled states where Trump currently leads: Georgia, North Carolina, and Pennsylvania.
Why are Michigan, Pennsylvania, and Wisconsin taking so long to count votes? Thanks to the coronavirus pandemic, every state saw a historic surge in absentee voting in the 2020 election. Since those ballots have to be verified before they can be tabulated, they take slightly longer to count than votes that were cast in person. Many states anticipated this and allowed election officials to complete the verification process for incoming absentee ballots before Election Day, hastening the count. Republican-led legislatures in Michigan, Pennsylvania, and Wisconsin refused to allow their election officials to start the process before Election Day, thus creating a backlog.
In some of those states, Republicans are challenging ballots that have yet to be counted. The Trump campaign filed a lawsuit in state court on Wednesday afternoon to halt the count in Michigan until campaign observers get “meaningful access” to the tabulation process. It also announced a lawsuit to halt counting Pennsylvania on similar grounds shortly thereafter. A group of Pennsylvania GOP lawmakers sued Montgomery County, which includes suburban Philadelphia communities, on Tuesday night for allegedly processing roughly 1,200 mail-in ballots before Election Day.
There is also a pending case before the Supreme Court involving mail-in ballots in Pennsylvania that arrive after the state’s Election Day deadline, which the Trump administration asked to join on Wednesday. Last week, the justices rejected a state GOP request in that case to temporarily block a court-ordered extension that would allow Pennsylvania to count absentee ballots that arrive up to three days after Election Day, but they may yet take up the full case on the merits in the coming weeks. It’s unclear how many ballots would be affected by the lawsuit or whether they could change the outcome in the state. If Biden holds his current leads in Arizona, Michigan, Nevada, and Wisconsin, the Pennsylvania cases would not factor into the presidential election’s ultimate outcome.
Another potential pathway to the courts for Trump is through state recount laws. The Trump campaign announced on Wednesday that it would seek a full recount of Wisconsin, which it is entitled to request if the margin of victory is below 1 percent. Michigan and Nevada also allow for candidates to request recounts no matter the margin, but the candidate must pay the state any costs for conducting it. Arizona’s recount laws could make it impossible for Trump to challenge the results there, however: The state only conducts automatic recounts if the margin of victory is at or below 0.1 percent, and it doesn’t allow candidates to request recounts on their own.
Recounts naturally evoke memories of the 2000 presidential election and the Rehnquist Court’s infamous ruling in Bush v. Gore. But Trump faces much less advantageous terrain in the 2020 election than Bush did. Generally speaking, recounts rarely swing enough ballots to the trailing candidate to change the outcome, especially when the margin of victory consists of thousands of votes. Shell-shocked Democrats pushed for recounts in key states in 2016 without success. “After recount in 2011 race for WI Supreme Court, there was a swing of 300 votes,” former Wisconsin Governor Scott Walker wrote on Twitter on Wednesday morning. “After recount in 2016 Presidential race in WI, [Donald Trump’s] numbers went up by 131. As I said, 20,000 is a high hurdle.”
So where else can Trump turn? He constantly complains that Democrats would use voter fraud, which is virtually nonexistent in American elections, to steal the presidential race from him. But evidence of voter fraud is far more scarce than Republican bluster about the integrity of the vote. In state and federal litigation throughout this year, judges across the country said they were unconvinced by Republicans’ purported evidence of widespread voter fraud to justify further restrictions on voter access. And while Trump and his allies shared dubious allegations of voter fraud on Tuesday and Wednesday on social media, none of it suggested systemic problems with the vote in states where Trump is falling behind.
The election is far from over, of course. There are millions of ballots that still must be tabulated across the country as of Wednesday afternoon. Hundreds of thousands of ballots remain uncounted in states that could help decide the presidential election. Legal issues may arise as the process unfolds. Fears of a 2000 election repeat are even understandable in a divisive, turbulent year with a strengthened conservative majority on the Supreme Court and an authoritarian president in the White House. But if there’s a clear path out there for Trump to ask the justices to decide the election in his favor, it has yet to emerge.
This article has been updated to account for the latest developments.