While some say it’s all over but the crying, a defiant President Trump appeared eager Sunday to fight the good fight. In a lengthy telephone interview with Maria Bartiromo on Fox, the president outlined numerous grievances regarding Election 2020. He used the opportunity to appeal to “one good judge or justice” to right what millions of Americans continue to regard as an election stolen from the commander in chief.
Time is running out for the president as many legal avenues have yielded few positive outcomes in various state and federal courts. We turn to our Legal Affairs Editor, Scott D. Cosenza, for the latest information and possible avenues left for the Trump campaign.
Leesa K. Donner: Scott, speaking strictly theoretically for a moment, what has to happen for the U.S. Supreme Court to become involved in this election?
Scott D. Cosenza, Esq.:The campaign, or some other party with standing, must appeal a lower court ruling on a federal issue, which four Justices agree to grant a hearing to resolve.
LKD: Thus far, the majority of this election controversy has been waged in the court of public opinion with little to show in the actual courts. Most of our readers are aware of the judicial downs regarding the many court actions taken on behalf of the president or the campaign itself. Of these, are there any that might land at the feet of the Supreme Court Justices?
SDC: The case I predict they are most likely to hear concerns whether the Pennsylvania Supreme Court or others who are not state legislatures may act unilaterally to amend election rules. The U.S. Constitution states that state legislatures are to set the time, place, and manner of elections. The PA state election code’s “received-by deadline” – passed by the Pennsylvania legislature – requires mail-in and absentee ballots to be returned to county election boards no later than 8:00 p.m. on election day to be valid. The state’s Supreme Court ruled instead that ballots arriving as late as November 6 were to be counted, provided they were postmarked by election day, November 3.
If the U.S. Supreme Court does take up this case, it may make a significant difference in future elections, but it is unlikely to have any substantive impact on the 2020 elections. That’s because the number of ballots that could change, depending on the case’s outcome, is too small.
LKD: There has been a long-standing order issued by Justice Samuel Alito regarding Pennsylvania. What’s the essence of that directive, where does it stand at this point, and will it ultimately be of any consequence?
SDC: The order Alito issued required the various Pennsylvania boards of election, as well as the PA Secretary of State, to segregate ballots that arrived by mail after election-day. This would allow any future ruling of the Court to concern only those ballots. Justice Alito’s ruling preserved those future ballots for court action, if required. Had the ballots been counted alongside all the others, future court action concerning them might be impossible. He said in his order that he would refer the case to the full Court for consideration. The Supreme Court is accepting briefs on this case through today, Monday, November 30. After that, we will have to wait and see as the Court keeps its own calendar.
LKD: Should Mr. Trump not be able to find relief in the lower courts, is there any legal maneuver you can think of that would get him in front of the Supreme Court? In other words, what would have to happen this week for them to step in finally?
SDC: The campaign or another party with legal standing must present evidence in court of significant fraud that implicated federally secured rights of candidates or voters. Then the lower courts need to issue rulings in the case that could be appealed to the high court, and finally, have four Justices agree to take the case.