Will This Election Be A Replay Of Bush v. Gore At The Supreme Court? Not Likely

By Nina Totenberg

Published November 7, 2020 at 4:01 AM PST

The 2000 presidential election between Al Gore and George W. Bush ended up at the Supreme Court. Experts say that's unlikely to happen this time.

With President Trump railing about "fraud" and pointing to the Supreme Court — with three of his appointees — as the final arbiter, the question many are asking is this: What are the chances that the high court will actually get involved? In short, will 2020 be a replay of Bush v. Gore?

Election experts of all political persuasions say it is highly unlikely. The best bet the president might have is in Pennsylvania, where Republicans twice before asked the justices to intervene, both times unsuccessfully. On the first try, the GOP challenged a decision by the Pennsylvania Supreme Court. The state court, interpreting the state constitution, extended the time for receiving absentee ballots by three days, as long as the ballots were postmarked by Election Day or had no legible postmark.

The U.S. Supreme Court deadlocked 4-4 when the presented with the issue the first time in late October. That meant the state court decision remained in place. On a second try, the vote was 8-0 after Pennsylvania officials agreed to segregate those votes received after Election Day.

The Trump campaign is still trying to get the Supreme Court to intervene, asking for it to hear arguments in the case. But experts say that while that is possible, it is unlikely, for the simple reason that the votes that were received after Election Day are sufficiently small in number that Joe Biden's lead is far more than the number of ballots received after Election Day.

"Unless something new happens, I don't see a viable path for Trump to litigate his way out of an Electoral College loss," says election law expert Richard Hasen, of the University of California, Irvine.

Florida State University law professor Michael Morley agrees, noting that Biden still has several paths to victory.

If Biden carries Pennsylvania, where his lead is growing substantially, he doesn't need to carry any other state to win.

And if he doesn't carry Pennsylvania, he has other paths to victory. Assuming the AP projection of a Biden win in Arizona holds, the former vice president needs only Nevada or Georgia to win, and for now, he is leading in both.

"The easy thing" [for the justices] to do is to say, 'Why bother?' " says professor Derek Muller, of the University of Iowa School of Law. Muller notes that some conservative Supreme Court justices have expressed an interest in "revisiting" the question of whether a state legislature's majority-party view of the law supersedes a state supreme court interpretation. But, he adds, that it is "unlikely" the justices want to insert themselves into the political brambles when, as of now, there is no evidence of major fraud or misbehavior that would make a difference to the outcome of the election.

Right now, Trump, whether he likes it or not, would appear to be "outside what's called the margin of litigation," observes professor Edward Foley, director of The Ohio State University election law program. That's what happened to Democratic presidential candidate John Kerry in 2004, Foley explains. Kerry was teed up and ready to bring legal challenges in Ohio, but, "the votes just weren't there" in large enough numbers to justify the litigation.

The margin of litigation, however, does not seem to be something President Trump is thinking about right now. Appearing at the microphones Thursday night, he said, "We think there's going to be a lot of litigation because we have so much evidence, so much proof. And it's going to end up, perhaps at the highest court in the land. ... We can't have an election stolen like this."

But at the same time that Trump was calling for a halt to the counting in states where his lead was disappearing, he wanted the vote counting to continue in places where it was Biden's lead that was eroding.

Trump campaign legal adviser Harmeet Dhillon told Fox Business that the campaign is hoping new Supreme Court Justice Amy Coney Barrett will help Trump win the presidency if a case makes it to the Supreme Court.

"We're waiting for the United States Supreme Court — of which the president has nominated three justices — to step in and do something," Dhillon said. "And hopefully Amy Coney Barrett will come through."

Election experts, both conservative and liberal, however, say that so far, they have seen no evidence of fraud. Rather, as professor Muller puts it, the allegations have been "nitpicky stuff," like observers who wanted to be, and were ultimately allowed to be, closer to the ballot counters. Indeed, in an era when TV cameras are literally in the vote-counting centers recording what goes on, it makes it more difficult to cry "foul."

In fact, even in Georgia, where the current margin of victory for Biden is so slim there is expected to be a recount and where all the statewide officials are Republican, those overseeing the ballot count have said there is no evidence of fraud.

There are some theoretical moves that the Trump campaign could undertake — for instance having some Republican-controlled state legislatures try to substitute GOP Electoral College delegates for Democratic delegates in states where Biden has won more recorded votes. But that would require extraordinary Republican maneuvers in the U.S. Senate — something not seen since the extraordinarily divisive and problematic election of 1876.

Sen. Lindsey Graham, R-S.C., said Thursday that "everything should be on the table." But Senate Republican leader Mitch McConnell refused to say anything other than that all ballots should be counted.