BU Today: Does Trump have the authority to seek a halt to the vote counting, and how could even the high court stop the counting of legally submitted ballots?

Tsai: The Trump administration is asking for permission to join the existing [Pennsylvania GOP] lawsuit. That’s the most likely vehicle to get any election issue in front of the Supreme Court. There were four justices who had shown some interest in the GOP position. Three were really interested in the theory that the Equal Protection Clause of the Constitution would be violated, that [Pennsylvania] might be changing the rules midstream by moving [counting of] those mail-in ballots a couple of days. In my view, that’s a pretty frightening thought. The question is, what would Amy Coney Barrett do?

The thing is not to be overly alarmed about it yet, because that lawsuit is about anything that comes in after Election Day. None of the votes being counted right now are affected by that lawsuit. As it stands in Pennsylvania, there are votes outstanding from the Philly area, expected to be heavily pro-Biden. He could wind up [winning the state].

Mattioli: I believe the Trump campaign can request an injunction to stop the vote count. I do not foresee that being successful, given the recent Wisconsin and Pennsylvania cases. The Trump campaign can file any number of requests for an injunction, but it doesn’t mean that any of them have merit, or that they won’t be summarily dismissed.

Is there any precedent in Bush v. Gore that Trump could cite in an appeal to SCOTUS this time?

Tsai: It looks like there are at least three justices who might be willing to expand the logic of Bush v. Gore. There was that [non-precedent] language in Bush v. Gore, but most people were skeptical whether that could be true. It seems strange to say we have a legal principle that only works for one case ever. Someone did a count; Bush v. Gore has been cited hundreds of times. It’s not a case that’s been left there unused.

Mattioli: Bush v. Gore states that it can not be used as a precedent for future cases, so it strikes me as unwise to use it as the basis for a legal claim.

Did the high court’s decisions last month about various states’ counting procedures portend anything about how they might act vis-a-vis Trump’s threatened request?

Tsai: It might. There have been a slew of lawsuits by state GOPs. I tend to keep an eye on the arguments they’re making to see if anything resembles this one the Supreme Court showed interest in, in Pennsylvania. I’m not seeing a lot of that.

Mattioli: The recent Pennsylvania and Wisconsin cases remind us the Court determines the rules of the game, in part. But their rulings are not made because the president demands it. The Supreme Court is more tolerant of state courts’ interpreting their own election laws rather than federal courts. So, if a case comes via state court, I predict it will be more successful than one that originates in federal court.

Big picture: Do you think this election will be settled by the courts?

Tsai: There’s a lot to still play out, but the worst Armageddon scenario has been averted, that is to say, getting to a 269-269 tie [in the Electoral College]. If Biden hangs on to what is leaning his direction, he’s real close. Even if a federal judge interferes, it’s less likely to be decisive in the outcome.

Mattioli: I do not think this election will be settled by courts. There have been no legal challenges which credibly threaten to halt the ongoing counting of ballots. The counting of those ballots will, based on what we know about the outstanding vote, reveal a narrow but decisive Biden victory. I doubt that the Court will deign to consider a case where it will be forced to dirty its hands in the muck of the campaign without a strong chance that it will make the difference in the final outcome.
 
We can think about the Trump campaign’s challenges to the election outcome. Perhaps this challenge is a function of genuine concern. I don’t think it is genuine, because there hasn’t been evidence of widespread voter fraud; the Trump campaign has never expressed noninstrumental interest in election integrity before; and the voter suppression that has occurred has mostly impacted likely Democrat voters. Second possibility: President Trump knows he has lost and he is having a hard time confronting the truth. Third, and I think the most likely possibility, is that the legal challenges buy time. If the Trump campaign believes it can win in some of these holdout states—Arizona, Nevada, Georgia—and does, that will make Pennsylvania decisive. If Pennsylvania is decisive, it will be difficult for the Supreme Court to ignore a challenge based on Pennsylvania’s election administration. I think the legal challenges are meant to buy time.