With Joe Biden on the verge of claiming the presidency as ballots continued to be counted, legal efforts by President Donald Trump to turn the election his way are the equivalent of Hail Mary passes at the end of a football game, according to Dan Urman, who teaches Constitutional law and the modern U.S. Supreme Court at Northeastern.
“But as you know, sometimes Hail Mary passes get caught,” adds Urman, who is also director of hybrid and online programs in the School of Law, and director of the Law and Public Policy minor.
Trump’s campaign filed lawsuits on a variety of fronts Wednesday in Pennsylvania, Georgia, and Michigan. Urman believes that Trump’s most promising path to the legal outcome he’s seeking lies in Pennsylvania, whose 20 electoral votes helped Trump earn the presidency in 2016.
Trump is seeking to participate in a Supreme Court case involving Pennsylvania ballots that were received after Election Day. In a ruling last month, by a 4-4 deadlock, the justices left in place a Pennsylvania Supreme Court ruling that allowed Pennsylvania to count ballots that arrived up to three days after the election.
The U.S. Supreme Court hinted that it could revisit the case after Election Day. Urman believes the arrival of Justice Amy Coney Barrett, appointed recently by the president, could change that decision in Trump’s favor.
“Amy Coney Barrett says [Justice Antonin] Scalia was her role model,” Urman says. “Scalia was an ‘originalist,’ but he also was a ‘formalist.’ By that I mean he took a more formal, strict view of the law, including election law. Scalia also joined a former, almost literalist, opening in Bush v. Gore, suggesting that state legislatures alone set election rules. This suggests that Justice Barrett would join the more conservative justices if the case came back up to the Court.”
In spite of judicial philosophies, Urman wonders if the Supreme Court may be reticent to be seen as following the president’s orders.
Trump appointed three current justices—Neil Gorsuch, Brett Kavanaugh, and Barrett—which has provided conservatives with a 6-3 majority. In its 2000 Bush v. Gore ruling, the appearance of helping George W. Bush overcome Al Gore in a historically tight election served to damage the Supreme Court’s reputation.
“I think that the U.S. Supreme Court doesn’t want to unnecessarily spend capital,” Urman says. “Bush v. Gore harmed the legitimacy and image of the Supreme Court for quite a while.”
Urman notes that the impact of a court decision to throw out late-arriving votes could be negligible if Biden winds up with a large enough lead in Pennsylvania. Though Biden was trailing Trump in the state through most of Thursday, he has been making up ground as mailed votes have been opened and counted.
“We don’t know yet how many ballots might be affected,” Urman says.
Trump has also filed suit with the Commonwealth Court of Pennsylvania to toss out absentee and mail-in ballots that are missing proof of identification and have not been verified by Nov. 9.
A victory in Pennsylvania would advance Biden to the White House. But Biden could also survive a loss in his native state, so long as he wins the elections in Arizona and Nevada, where he has maintained leads as votes continue to be counted.
Trump is pursuing a similar legal strategy in Georgia, where he has filed suit in Chatham County—with the possibility of more actions to be taken in other counties—asking that the state follow its own laws on absentee ballots, which requires that they be received by the close of polls on Election Day.
Trump seized a big lead in Georgia on Election Day, but as more votes have come in, the race has turned into a toss-up.
Urman is more skeptical of Trump’s filing in Michigan, which is based on a complaint that Republicans have not been granted “meaningful access” to oversee the counting of votes.
He also doubts whether an anticipated recount in Wisconsin will help Trump overcome Biden’s lead of more than 20,000 votes there. Recent recounts in the state have resulted in changes of fewer than 400 votes.
Though elections have been fraught with legal issues since Bush v. Gore, Urman questions whether Trump will be able to make winning arguments.
“Put yourself in the judges’ shoes,” Urman says. “Do they want to be remembered for limiting their fellow citizens’ right to vote during a pandemic?”