Erwin Chemerinsky: Trump’s Packed Supreme Court Won’t Save Him

Just hours after voting booths closed around the country, President Donald Trump took to the podium to declare victory. “Frankly, we did win this election,” he said. “We’ll be going to the U.S. Supreme Court. We want all voting to stop.” Of course, vote counting did not stop, and as election workers continued to tally in states like Michigan, Pennsylvania and Georgia, Trump’s lead was diminished and eventually reversed.

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Along with the promise to secure victory through the Supreme Court—whose newest member, Amy Coney Barrett, could be the critical swing vote—the Trump campaign has unleashed a torrent of lawsuits in states around the country, most of which have been quickly dismissed. To survey the current and quickly shifting legal landscape of the election, Capital & Main spoke with Erwin Chemerinsky, dean of the University of California, Berkeley School of Law. The interview, conducted shortly before Joe Biden was declared the president-elect, was edited for brevity and clarity.

Capital & Main: The Trump campaign has filed a rash of lawsuits in various states. Before we go into their substance, or lack thereof, can you characterize what the suits are alleging?

Erwin Chemerinsky: There are three sets of litigation. One involves Pennsylvania. Pennsylvania state law says that absentee ballots have to be received on Election Day or earlier in order to be counted. But the Pennsylvania Supreme Court extended the deadline for receipt of absentee ballots to Friday, November 6. An issue is pending before the U.S. Supreme Court as to whether the Pennsylvania Supreme Court violated the U.S. Constitution in extending this deadline.

“There is no evidence of vote fraud. Trump keeps saying it is there, but nobody has actually pointed to any.”

A second set of lawsuits are going to arise out of recounts. Every state has its own law with regard to recount procedure. In Wisconsin, for example, a candidate who loses by less than 1% can claim a recount. Donald Trump has already said he’s going to do that. In Georgia, the margin is so close there will be a recount. And recounts can lead to litigation—that’s what ultimately led to Bush v. Gore in 2000. In that case, in Florida, there were several hundred votes out of 6 million that were separating the candidates, and ultimately the Supreme Court ended the recount.

The third set is challenges to procedures in particular states. The Trump campaign has filed a lot of these in the last few days. Sometimes, as in Michigan, they are claiming that observers weren’t allowed to stand close enough to the ballot counter. In Georgia, somebody said they thought they saw someone take a couple dozen ballots that came in too late and counted them. It turned out there was no basis for that. I describe this as throwing a lot of spaghetti at the wall and seeing if something sticks. So far, none of these has gone anywhere. As we speak, there is no evidence of vote fraud. Trump keeps saying it is there, but nobody has actually pointed to any.

One judge, when rejecting a case, stated that it relied on hearsay within hearsay. Others have seemed exasperated with the flimsiness of the lawsuits. What about the motivations here? The obvious one is that these are just extensions of the campaign to sow disinformation and doubt. Could it also be that they hope that if they file enough suits they’ll eventually get in front of a particular judge who might be to their liking and could rule in their favor?

I see it as an extension of the campaign. Trump is saying that there is fraud all over. One way of manifesting that view is to file lots of lawsuits. 

Trump seemed to believe that he was going to go to the Supreme Court and file lawsuits. That’s not how it happens. How does a case actually get in front of the Supreme Court?

No case involving this election can start in the Supreme Court – not whether it’s brought by the president of the United States or by you or me. A case has to either start in state trial court or federal trial court and go up from there. The Pennsylvania case regarding the absentee ballots received after Election Day is one that could impact the election, but only if it’s close.

In close elections, there will always be litigation. That’s nothing new. What was unique with Trump was that this was something he broadcast from the beginning.

There are about 30,000 votes that came in between Election Day and Friday. If Biden wins Pennsylvania by less than the margin of votes that come in after election day, then those votes could be critical. But at this time, Biden is ahead without counting those 30,000 votes, and if he wins by more than 30,000, those ballots don’t matter.

The obvious shadow here is Bush v. Gore. What lessons should we take from that ruling?

It’s important to remember that in 2000, it came down to only one state, Florida. And there were just hundreds of votes separating the candidates. That’s why the counting mattered so much, which the Supreme Court stopped. At this point, it might come down to one state—but it might not. There are still five states in play, and if Biden wins Georgia and Nevada, or Arizona and Nevada, Biden wins. That’s a very different context than 2000. 

In that vein, are there potential cases you see arising out of states like Nevada or Arizona that could prove pivotal, as the Michigan absentee voters case might?

At this point, no. There’s been an allegation that Nevada counted 10,000 votes of people who didn’t live in the state, but no evidence was produced in support of that claim. [During a press conference on Thursday to announce the allegation, former Nevada attorney general and Trump campaign co-chair Adam Laxalt failed to answer questions from reporters or provide any documentation in support of their allegations.] There’s nothing in Arizona or Georgia, either.

So what are the chances that this election ends up being settled by the Supreme Court, as your op-ed this Tuesday in the Los Angeles Times suggested?

At this stage, it’s unlikely. The only possibility would be if the 30,000 votes in Pennsylvania that came in between Tuesday and Friday were potentially decisive.  But at the moment, Biden is ahead by 28,000 votes without that (and it is likely to grow).

But the GOP is trying to raise $60 million for Trump’s legal costs. Does that suggest they have some other strategies in mind?

It shows they want to be prepared to litigate extensively. But at this point, it does not seem likely litigation will make a difference.

Even if these claims are dismissed and Biden wins by margins that make all these lawsuits moot, are you concerned that Trump is ushering in a way of conducting elections that ultimately undermines the integrity of the vote?

In close elections, there will always be litigation. That’s nothing new. What was unique with Trump was that this was something he broadcast from the beginning, when he made statements like “votes counted after Election Day shouldn’t be counted.” We’ve always counted votes after Election Day. But I don’t think this will become a model for the future. I think it’s something unique to Trump.

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