The Current

Can Trump take election result directly to Supreme Court? No, but he could win if it gets there: legal expert

Legal expert Robert Spitzer says the Republican candidate cannot directly take the result to the Supreme Court, but if it gets there by other means, five of the nine justices are likely to side with him over rival Joe Biden.

'A lot of ifs' on the path to a Supreme Court case: Robert Spitzer

The result of the 2020 presidential election remains to be seen, but Republican candidate Donald Trump has claimed victory, while Democrat candidate says the election isn't over until all votes are counted. (Alex Wong/Getty Images, Mandel Ngan/AFP/Getty Images)

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Nov. 5, 2020 update: Since this article was published Wednesday, more states have been called — get the latest results here. The Trump campaign has requested a recount in Wisconsin and filed lawsuits in Pennsylvania, Michigan and Georgia. Get the latest news on the elections results on

Republican candidate Donald Trump's threat to take the election result to the U.S. Supreme Court isn't as simple as it sounds, says one legal expert.

"The president, first of all, has no ability to simply drop a case in the laps of the members of the Supreme Court and say, 'Resolve this in my favour,'" said Robert Spitzer, the distinguished service professor of political science at the State University of New York.

"That's not how the legal system works," he told The Current's Matt Galloway.

With millions of ballots yet to be counted, Trump prematurely declared himself the winner early Wednesday morning, before saying there had been "a fraud on the American public," and that "we'll be going to the U.S. Supreme Court."

Trump claims win despite millions of uncounted votes

3 years ago
Duration 1:12
Republican presidential candidate Donald Trump said as far as he’s concerned he and the Republican Party have won the U.S. election. He said he will go to the U.S. Supreme Court and wants voting to stop. However, several states are still counting votes that have already been cast.

"We want all voting to stop, we don't want them to find any ballots at four in the morning and add them to the list," he told supporters.

His opponent, Democrat candidate Joe Biden, said "it ain't over 'til every vote is counted."

Spitzer spoke to Galloway about what the road to a result might look like. Here is part of their conversation.

Were you surprised that the president declared victory while we're still waiting for many states to actually declare a clear winner?

No, I was not. Trump has made clear now for weeks in various ways that he would declare victory as soon as he was able, as soon as it looked like states were going his way, regardless of whether that was the final result or not. And Trump was then going to make claims of fraud, when vote totals began to change.

Of course, we've seen the pattern in a number of states where the initial total favoured the Republicans, because the first votes counted in many places were the in-person votes cast on election day. And then as you're counting mail-in ballots, which tend to be cast more by Democrats, the totals begin to change in favour of Biden, the Democrat. So none of this is a surprise and it certainly is consistent with how he has behaved as president.

Biden on delayed result: 'We feel good about where we are'

3 years ago
Duration 0:59
U.S. Democratic presidential candidate Joe Biden spoke to a crowd at a drive-in rally in Wilmington, Del., where he said he believes he and his party are on track to win the election.

He said, and these are his words: "We are going to the United States Supreme Court. We want all voting to stop." There are, as you mentioned, millions of mail-in votes still to be counted. Is there anything that could stop those votes from being counted? 

Conceivably, yes, but it depends on which votes and where. The president, first of all, has no ability to simply drop a case in the laps of the members of the Supreme Court and say, 'Resolve this in my favour,' because that's not how the legal system works. If there is a legal challenge to votes, first, there has to be a live case or controversy, some basis for bringing an action to the court. Secondly, even though it's a federal election, the elections are administered by the states.

So the initial appeal would be to a state court, not the federal courts. And assuming the state courts take a case, and then rule and then the ruling is appealed, it could make its way to the federal courts and then to the Supreme Court, perhaps under expedited review. But those are a lot of ifs. And so far there have been no charges of fraud or mishandling of ballots. It's simply taking longer because roughly 60 per cent of all the votes cast in this election in the U.S. were cast by mail. 

So it just takes extra time and we probably will have a fair, much more accurate number within the next couple of days of what's going on in these states that have not yet reported final totals. 

[Trump] has appointed three conservative justices to the Supreme Court, of course, most recently and controversially, Amy Coney Barrett. Does this help him if this case eventually moves, ultimately moves to the Supreme Court? 

Yes, it does. I don't think there's any question but that the three justices President Trump appointed are extremely conservative. They have a loyalty to him, just ideologically. And also the three justices all participated in the disputed election of 2000 and argued vehemently in a variety of forums and worked aggressively to get George W. Bush elected.

And frankly, I think it's clear to me that there are five votes of the nine-member Supreme Court to uphold Trump on virtually any claim that might have a shred of credibility that gets there. But that doesn't mean that there is a judicable question. It doesn't mean that there is any legal basis to bring a suit. And there's got to be some fundamental, important legal question for this to come to the Supreme Court. But I think if a case gets there, I can readily see five justices siding with Trump in anything that would seem to have any shred of legitimacy on the part of any appeal brought by Trump.

How U.S. election night unfolded in 7 minutes

3 years ago
Duration 7:10
Watch highlights of our coverage of the U.S. presidential election.

What's the timeframe that we're looking at here and how long does he have to make his case? But also, when do you think we would actually see a winner declared? 

In terms of when a case might be brought, it just depends on the facts of the case. Obviously the legal process can take weeks or even months. Presumably, if the courts receive and decide to hear a case, they would expedite review and move things along because there are some hard deadlines coming up in the weeks ahead. 

But I think we will really pretty much know the outcome of this race by the end of this week, by Friday. The one state that is lagging behind the others in terms of counting is Pennsylvania, which is a very important swing state. And their counting is simply slower.

But the election may not hinge on Pennsylvania. We probably will have results, final results from Arizona, Nevada, Wisconsin, Michigan, and if those states go to Biden, then I believe the election will go to Biden as well. But we've got to see, and let the state officials do their work. And I will say that the counting has been very calm, very orderly. I think people have a high regard for the system outside of the White House. 

Written by Padraig Moran. Produced by Ben Jamieson and Kate Cornick.

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