US Election Donald Trump

Photo: Flickr / Gage Skidmore

What would happen if the US Election is decided in the courts?

Donald Trump wouldn’t take defeat in the US election lying down, having already indicated that an unfavourable outcome would be challenged.

US Election Donald Trump

Photo: Flickr / Gage Skidmore

US president Donald Trump will be anxiously watching the influx of votes being logged across the country on Wednesday as counters continue to determine whether he or Democratic candidate Joe Biden will be the next president of the country. He has adamantly insisted though, that should things go against him, he will pursue a more favourable outcome via the Supreme Court of the United States of America. 

This statement, which stemmed from Trump’s declaration that vote counting should cease in the event that fraud was being committed – was met with widespread condemnation. It did open up the possibility that the final word on the election results may – in unlikely circumstances – need to be determined via the courts though. 

How can the US Election be decided in the courts?

If Trump were to take his grievances over a potential loss to the Supreme Court, he would face a series of challenges, and the global public would be in for a long wait to officially learn who the next leader of the free world is. 

Because the Supreme Court is the final court of appeal in the US and has discretion over which cases it should hear, it is largely used to resolve cases relating to challenges to heard in lower courts on points of federal law and the constitution. Therefore, in order for vote counting to be contested at this level, a plethora of challenges will first be heard in the US’s lower courts.

Trump’s strategy essentially lies in suggesting that any manner of voting made available that made the process safer in light of the rampant COVID-19 crisp currently plaguing the country is illegitimate. Mail-in voting and expanding absentee ballots have been contested by the current president as a means through which the process of electing the new and legitimate president of the US can be easily corrupted. 

These challenges to the voting process would first need to be heard in the lower courts before the Supreme Court ultimately determined whether or not irregularities, if found to have occurred, affected the legitimacy of the final count. 

Pennsylvania under the microscope 

The most common scenario is for lawyers to challenge the way an election was conducted locally and seek to have votes discarded. In the key state of Pennsylvania, conservative groups have already ramped up cases to ensure late mail-in ballots are not counted, with two cases due to be heard on Wednesday.

However, Pennsylvania requires an unusually high burden of proof for challenging elections, including written affidavits detailing wrongdoing.

The Guardian report that Pennsylvania is already on the supreme court’s radar in this respect. 

“Republicans in the state have already appealed against a Pennsylvania supreme court decision ordering state election officials to accept mail-in ballots that arrive up to three days after the election, relying on an interpretation of the state’s own constitution”, they reported.