Could Trump use the Supreme Court to stop vote counting?

It was a threat issued in the wee hours of the morning to a nation still struggling to understand its future.

“We'll be going to the US Supreme Court,” President Donald Trump said, moments after falsely declaring victory in a knife-edge election that hadn’t been called yet. “We want all voting to stop. We don't want them to find any ballots at 4 o'clock in the morning and add them to the list, OK?"

At that time, voting had stopped. Polls were closed, even all the way in Alaska on the west coast. But millions of votes were (and still are) being counted, as is common in US elections.

With Democrat rival Joe Biden now gaining ground in a race remaining (excruciatingly) too close to call, Trump’s bid to suspend the normal counting process through the courts has been labelled a power grab by many commentators and some senior Australian politicians, including opposition leader Anthony Albanese, are joining worldwide calls for a full count.

Biden has vowed to challenge Trump’s plan with his own army of lawyers. “This ain’t over until every vote is counted,” he said, urging Americans to have faith – and to have patience at the end of a long election night. “It’s not my place or Donald Trump’s place to declare who’s won this election. That’s the decision of the American people."

So could Trump – or a judge – actually stop people’s votes being counted?

What is Trump’s plan?

While Trump might want Americans to believe that votes are still being sent in after election day and counted by unscrupulous officials, voting has stopped. Polls had closed before he stepped up to the podium for his address and no state will count absentee ballots postmarked after election day.

What Trump wants is for vote counting to stop. This may seem counterproductive when he is, at the time of writing, still down in the electoral college race to 270, but there’s a clear strategy behind it. This year’s election saw huge voting numbers and, thanks to the pandemic, a record amount voting via mail. In some states, these mail-in ballots are counted after those from polling booths.

Such a system has been built into state laws for decades without concern – the defence force have long used them to vote, says Dr Thomas J. Adams, an expert in US politics and history at the University of Sydney. But mail-in ballots also tend to swing Democrat – hence the terms the “red mirage” and “blue wave” where early election results can show the map filling up with red Republican votes, only to be washed away by Democrats mail-in ballots counted later.

The sheer volume of postal voting, coupled with social distancing rules, has slowed counting in many states. But, even in a normal year, US elections are big events requiring enormous manpower – it's common for votes to be counted in the days and even weeks after election day. That’s why states have their own inbuilt deadlines for final counts and until December 14 to certify their vote to Congress.

Trump spent the campaign warning of voting fraud, even before ballots were cast. In October, after rushing through the nomination of a new conservative justice Amy Coney Barrett to replace the late Ruth Bader Ginsburg on the Supreme Court bench, Trump even foreshadowed his bombshell legal challenge. "I think this will end up in the Supreme Court,” he told reporters of the election. "And I think it’s very important that we have nine justices.”

Adams, like many experts, sees the threat as a ploy, from a president and businessman with a long history of pursuing lawsuits. "It's about casting doubt on the result, it's part of how he operates. He throws things out there and sees what sticks. It doesn't mean he can do it. And if they call the election for Biden tonight, it could all be moot anyway."

Still in an election – and a presidency – routinely smashing through precedent, just what could unfold in the Supreme Court, even with a Biden win, is now being hotly debated.

Can the Supreme Court block counting?

Trump cannot walk into the Supreme Court and file a petition there to stop votes being counted. Challenges have to work their way up through a gauntlet of state courts first, including district, and, as the final court of appeal in the US, the Supreme Court can then decide which cases it hears.

Election officials have vowed to keep counting in the meantime but the longer it takes, the more time challengers will have to win a bid to block it. Still, Adams thinks the chances of the Trump campaign winning an injunction to halt counting unlikely. "There's nothing in the courts to stop it right now. A judge would have to find a clear reason."

That reason, according to Trump, is voting fraud. After a long campaign of warning, without evidence, of ballots dumped in rivers and otherwise underhandedly manipulated to turn blue, the president told the nation overnight they had been the victim of a "major fraud". His evidence this time appeared to be the rapidly tightening race itself. "We were getting ready to win this election," Trump said, before several key state races began tilting for Biden. "Frankly, we did win this election."

Sometimes things do go a little awry during voting. On election day this year a burst water main in Georgia delayed vote counting from some counties, for example. At another, there are reports a machine ran out of ink. There were long lines and some reports of voter intimidation, after Trump urged his supporters “observe” those casting ballots, but mostly election day ran smoothly. There has been no reported evidence of the voting fraud or tampering.

One viral video allegedly depicting 80 Trump ballots being set alight, shared on Twitter by US President Donald Trump's son Eric, has already been debunked. In a statement, the city of Virginia Beach, in southeastern Virginia, said: "They are NOT official ballots, they are sample ballots." The giveaway? The sample ballots did not have a bar code.

Adams says that when it comes to voter disenfranchisement, the odd box of ballots left unopened hardly makes a big difference to the final result. The real tactic that changes the map is stopping certain people from voting in the first place.

"You hear stories here and there of ... human error sometimes. But the real problems are in the Republican playbook, finding ways to stop people voting Democrat, and throwing up hurdles, like overzealous ID checks, at polls."

Of course, this year the expanded rules to allow for more mail-in voting during COVID has opened the doors for more legal challenges. There's already been a suite of challenges in many states by Republicans keen to have mail-ins thrown out entirely, including five heard by the Supreme Court in the past fortnight. Some states are counting ballots received up to three days after election day so long as they are clearly postmarked for November 3.

One such challenge to this rule in Pennsylvania is still on the Supreme Court’s docket. In October, the court declined to fast-track a bid by Republicans to stop vote counting of late arriving ballots, but its conservative justices left the door open to reconsider the challenge in the future and asked officials to mark those ballots in contention. Justice Barrett did not take part in the vote that deadlocked the bench because, as the newest justice, she was yet to review the case. But if Pennsylvania becomes the deciding state in the electoral college race, the court, now with a five to four conservative lean, may well intercede.

In terms of a bigger, more national challenge, some in Trump's camp push the line that all of these new COVID rules on voting have not been legislated specifically under state laws, and therefore all such ballots should be ruled invalid. In Georgia, Trump's campaign has already filed a lawsuit in Chatham County that essentially asks a judge to ensure the state laws are being followed on absentee ballots and alleged a Republican poll observer had "witnessed 53 late absentee ballots [those recieved after 7pm on election night, being] illegally added to a stack of on-time absentee ballots". Campaign officials say they are considering peppering a dozen other counties around the state with similar claims around absentee ballots.

But Adams says it would be staggering if Republicans got that case over the line. "The rules were made before the election, and they've already tried and failed in a lot of their challenges. We've passed the moment for a proper reckoning."

Biden's lawyer has warned if Trump does land a challenge in the Supreme Court he will face "one of the most embarrassing defeats a president has ever suffered".

Adams agrees the president's chances are slim, but says that if they do find a reason that makes its way through the courts and before "the Supremes", then "all bets are off!"

"Especially if the court decides it's the same issue across a few of those states that are deciding the result of the race ...Trump has his judges on the Supreme Court now, so it's possible they could find a way to help him...but it doesn't mean they'll automatically vote his way. His [other pick] Brett Kavanaugh has already broken ranks on certain [election] cases."

What about recounts?

As of November 5, there are still millions of ballots awaiting counting, many of them mail-ins.

Trump has already demanded a recount in the crucial Midwestern state of Wisconsin where Biden edged a narrow victory overnight alongside a suite of other battleground "rust belt" states. Trump’s team say they are well within the allowed margins for a recount in Wisconsin but some experts say the 20,000 odd votes in it are too wide.

Nevada and Arizona are still incredibly tight for Biden but he is closing the gap on Trump's lead in Georgia where most of the counting still to come involves early mail-in ballots. The same is true of Pennsylvania, another crucial battleground with many electoral college votes up for grabs.

Down the halls of US elections, recounts are not completely uncommon. In some states they are even triggered automatically if the margins are thin enough. In others, campaigns must have requests approved.

There is precedent for the Supreme Court to get involved in recounts too – such as when the contested 2000 race between George W. Bush and Al Gore escalated all the way to the highest court in the land.

But Adams says the margins do not seem anywhere near as thin in 2020 as they were back then. By the time the Supreme Court intervened to stop the recount (in favour of Bush), just 500 or so votes separated the candidates in Florida. "Even somewhere like Wisconsin, the margin might be less than 1 per cent but that can still be tens of thousands of votes in it. I don't think it will change the result."

In Michigan, the vote was called for Biden because he had a 70,000-vote lead on the evening of November 4, a margin over Trump of about 1.3 percentage points, and the ballots that remained to be counted were from overwhelmingly Democratic areas, according to Associated Press.

In Nevada, where recount rules are much more relaxed, the number of outstanding mail ballots was difficult to estimate, because the state opted to send ballots to all 1.7 million active registered voters due to the pandemic, and it was hard to predict how many would choose to return them. About 75 per cent of the votes were in at time of writing, with some cast on Election day still to counted. Biden led by less than 8000 votes. Trump's lawyers have already lost an earlier court case to stop the use of scanning machines in one of its counties to check signatures, but they could still appeal if the race remains tight.

Since election day, Trump's campaign has filed lawsuits in Pennsylvania, Michigan and Georgia, joining existing Republican challenges in Pennsylvania and Nevada which demand better access for campaign observers in locations where ballots are being processed and counted. (At one Michigan location in question The Associated Press observed poll watchers from both sides.)

In demanding a recount in Wisconsin, Trump campaign manager Bill Stepien cited “irregularities in several Wisconsin counties,” without providing specifics or evidence. But Republicans already won a victory in the state in October when the Supreme Court declined to extend the deadline for counting mail-in votes out to six days from November 3.

As for where it stands now, Adams says it may come down to close races in states tilting or already called for Biden such as Nevada and Arizona. “If there are recounts there and they flip the vote back to Trump it will come down to places such as Pennsylvania and Georgia. If it’s all on Pennsylvania, that's where I see the strongest court challenge, this could get really messy.”

With Felicity Lewis

This article was originally published at 12pm on November 5 and is being updated as developments unfold.