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5 November 2020updated 28 Jul 2021 5:55am

Will Donald Trump take the US 2020 election to the Supreme Court?

Many of the Trump faithful already believe that this election is being stolen.

By Emily Tamkin

In 2006 – just ten years before winning the presidency – Donald Trump threatened to sue the talk-show host Rosie O’Donnell.

“She says things that come to her mouth, she’s not smart, she’s crude, she’s ignorant and to be honest I look forward to suing Rosie,” he said. “I’m gonna sue her and I look forward to it.” He did not explain his legal reasoning and added that O’Donnell would find out for what she was being sued later.

The president has taken a similar approach to his attempt to win a second term in the White House. Not content with openly questioning the legitimacy of the election, baselessly declaring widespread fraud in mail-in voting, prematurely claiming victory in Pennsylvania and Michigan, and telling states to stop voting legally cast ballots, Trump is also threatening to sue.

On 5 November the Trump campaign filed lawsuits to contest counting in Pennsylvania, Michigan and Georgia. In Michigan and Pennsylvania, the campaign demanded access to voting sites to count each ballot; both campaigns have poll watchers on site doing just that. Additionally, that same day, the Trump campaign asked the Supreme Court to let it join an appeal by the Pennsylvania GOP to throw out ballots that are postmarked on or before election day but arrive up to three days after. The Supreme Court previously let stand the ballot deadline extension. On 5 November Fox News reported that the Trump campaign will also sue in Nevada over what it claims is voter fraud committed by “tens of thousands” people who do not live in the state (incidentally, at time of writing, Biden was ahead of Trump in the state by 10,000 votes).

In the early hours of Wednesday 4 November, Trump specifically announced, “We will be going to the Supreme Court.” Jared Kushner, the president’s son-in-law and adviser, has reportedly been making calls to try to find a “James Baker-like” figure to lead the legal challenge. Baker was the lawyer who led George W Bush to success at the Supreme Court in the 2000 case Bush v Gore, which essentially halted a recount in Florida and resulted in Bush winning the White House (three of the lawyers who worked on Bush’s side of the case are now themselves justices on the Supreme Court).

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[See also: How Donald Trump could try to overturn a Joe Biden victory]

None of this is especially surprising. Many thought Trump wanted to rush the confirmation of Justice Amy Coney Barrett so that he could have another justice on the bench ahead of the election, anticipating that its result could end up at the Supreme Court.

And it is possible that it will. This is the US: things more craven and transparently political than this happen all the time. But there are a few issues with Trump’s plan.

The first is that, as others have noted, one cannot just go straight to the Supreme Court – a case must, in most cases, make it up the winding staircase that is the US judicial system.

Second, in the case of Bush v Gore, the election result hinged on one state (Florida). It is as yet unclear that any of Trump’s various state-based lawsuits will work and, if they do, whether they will have enough of an impact to decide the election.

[See also: Why Pennsylvania is the battleground Joe Biden hoped he wouldn’t have to fight]

Third, by bringing lawsuits across the country to stop votes that have every legal right to be counted (while demanding that other states keep counting and also declaring victory), Trump has given away the game. This is not about legitimate concerns of election integrity, but about trying to increase Trump’s chances of victory. There likely are judges in the US who would be persuaded of such motivations, but it is as yet unclear whether any of them will be the ones presiding over Trump’s lawsuits.

All of this, again, could work. It’s possible that one of these challenges is taken up and that this election is close enough that Trump ends up getting just enough votes thrown out to put him back in the White House. In a sense, it has already worked: pro-Trump protesters showed up in Michigan demanding that those counting ballots stop doing so (and in Arizona, some with guns, to demand that voting continue, delayed the counting of the votes in the process). There are already millions among the Trump faithful who will believe that this election was stolen from him if he loses.

But it is also possible that 2020 is not 2000. That it will be obvious, to whoever takes these cases, that Trump in 2020 is just Trump in 2006 but with more power: a man who is suing because he can and is less concerned with the legal reasoning.

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