While President Donald Trump has promised to ask the U.S. Supreme Court to weigh in on a presidential race that is still too close to call, the nation’s top judicial body may not be the final arbiter in this election, legal experts said.
Election law experts said it is doubtful that courts would entertain a bid by Trump to stop the counting of ballots that were received before or on Election Day, or that any dispute a court might handle would change the trajectory of the race in closely fought states like Michigan and Pennsylvania.
With vote-counting still underway in many states in the early hours of Wednesday morning, Trump made an appearance at the White House and declared victory against Democratic challenger Joe Biden.
“This is a major fraud on our nation. 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,” he said.
The Republican president did not provide any evidence to back up his claim of fraud or detail what litigation he would pursue at the Supreme Court.
As of Wednesday afternoon, the election still hung in the balance. A handful of closely contested states could decide the outcome in the coming hours or days, as a large number of mail-in ballots cast amid the coronavirus pandemic appears to have drawn out the process.
However, legal experts said that while there could be objections to particular ballots or voting and counting procedures, it was unclear if such disputes would determine the final outcome.
Ned Foley, an election law expert at Ohio State University, said on Twitter that the Supreme Court “would be involved only if there were votes of questionable validity that would make a difference, which might not be the case.”
Both Republicans and Democrats have amassed armies of lawyers ready to go to the mat in a close race. Biden’s team includes Marc Elias, a top election attorney at the firm Perkins Coie, and former Solicitors General Donald Verrilli and Walter Dellinger. Trump’s lawyers include Matt Morgan, the president’s campaign general counsel, Supreme Court litigator William Consovoy, and Justin Clark, senior counsel to the campaign.