Will Donald Trump's 'Fraud' Claims End up in the Supreme Court?

Donald Trump has promised legal action and a quick path to the Supreme Court after claiming, without evidence, that there was election "fraud." He also said, again without evidence, that the election was being "stolen" by Democrats.

But is that really going to happen and, even if it does get there, what is he hoping that the Supreme Court will find?

Even before the winner has been announced, President Trump has promised that the Supreme Court will have the final judgment on who wins the 2020 presidential election. He has already begun legal action in a number of states—including in Pennsylvania, Michigan, Nevada and Georgia so far—to challenge results and to allow vote watchers to monitor ballots more closely.

Trump has said a number of times that he believes late-arriving votes should not be counted and has said many times that the postal voting system is widely fraudulent, without any evidence.

"If you count the legal votes, I easily win. If you count the illegal votes they can try to steal the election from us," Trump said in a speech on Thursday. He later said that "it's going to end up, perhaps, at the highest court in the land" and "we think there's going to be a lot of litigation because we can't have an election stolen like this."

He tweeted both "STOP THE FRAUD!" and "STOP THE COUNT!"

Biden campaign spokesman Andrew Bates has said that these legal challenges are a waste of time and just delaying the inevitable.

"What makes these charades especially pathetic is that while Trump is demanding recounts in places he has already lost, he's simultaneously engaged in fruitless attempts to halt the counting of votes in other states in which he's on the road to defeat," he said in a statement.

Will the 2020 election result reach the Supreme Court?

President Trump Speaks From The White House
U.S. President Donald Trump said, in the briefing room at the White House, that there was "fraud" in the election Chip Somodevilla/Getty

This, like so many things in this election, is uncharted territory. The COVID-19 pandemic led to a number of changes in how people voted and how people were allowed to vote, including a spike in postal, absentee and early voting. To allow as many people to vote as possible, extensions to how long mail-in votes arriving late could be counted were granted and this is one of the things being challenged.

But this will not involve the Supreme Court, at least for now. While Trump would like to rush straight to the highest court, well-established legal procedures are in place. The Supreme Court is the final court of appeal and will only be used if it cannot be resolved in lower courts. There is no way to bypass those courts.

"The only way the Supreme Court could step in here is to review what a lower state or federal court already decided, just as it did with the Florida Supreme Court in Bush v. Gore in 2000," Steve Vladeck, professor at the University of Texas School of Law, wrote.

The most likely case to reach the Supreme Court, at least so far, is in Pennsylvania. The Pennsylvania Supreme Court had ruled that all ballots postmarked November 3 (Election Day) that are received by Friday, November 6, should be counted. This was challenged by The Pennsylvania Republican Party and Pennsylvania legislators but justices declined to hold the ruling or fast-track any consideration of the challenge.

If it does turn out that these disputed ballots could swing that state in either direction, it is likely that the Supreme Court does get involved. But that relies on a lot of "ifs" and "buts" and a lot of unknowns.

It also ignores the fact that the Supreme Court can choose which cases it should judge over, and just because it currently has a 6-3 Republican-appointed majority, Trump should not expect any favors, experts say.

But that's not what some Republican lawyers believe: "We're waiting for the United States Supreme Court—of which the President has nominated three justices—to step in and do something," Lawyer Harmeet Dhillon, a senior Republican figure, told Fox. "And hopefully Amy Coney Barrett will come through and pick it up. There's no guarantee of that so we have to fight this on the ground and make sure we challenge it in every place and we are."

Will Amy Coney Barrett recuse herself and does the 6/3 Republican split matter?

The short answer is that nobody but U.S. Justice Barrett knows. Democratic senators have demanded that she committed to recusal in case this exact circumstance arose, which she did not answer at the time of her confirmation hearings. But only she can decide and there is no way to "force" her to do so.

Critics calling for her recusal have drawn on the precedent case of Caperton v. A.T. Massey Coal Co, where a litigant previously spent millions to elect a Court of Appeals justice who did not recuse himself.

It's a very complex ruling but the key line comes from the U.S. Supreme Court itself: "Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the other parties' consent—a man chooses the judge in his own cause," it said.

It is unclear if this ruling is important this time, given that three of the Justices have been appointed by the Trump administration. Few are calling for all three to recuse themselves. The impact of having six Republican-chosen Justices, which had not been seen in 70 years, is unknown.

How long could Trump's claims take to reach the Supreme Court?

This is another issue that contains a lot of "ifs" and "buts." In 2000, with the controversy in Flordia and "hanging chads," it took over a month from the end of voting until it reached the Supreme Court and until December 12 for Al Gore to agree to concede to George W. Bush. This time, it is unlikely to be much quicker if any cases really are to continue right through to the Supreme Court.

The difference this time is that it is not about voting intention, instead being about laws that vary state-by-state. This means most cases are likely to be decided in state courts rather than reach the highest court in the land.