The 2020 presidential election has resulted in many legal allegations from President Donald J. Trump, said Ronald Chen, a University professor at Rutgers Law School and expert in constitutional law.
Chen discussed the credibility of these allegations, the possibility they could end up in the Supreme Court and what could happen next in the situation.
“Many of the lawsuits that have arisen out of the election are related to the method of voting, and particularly special ways to permit voting in light of the (coronavirus disease) COVID-19 pandemic,” he said. “There is an assortment of other claims, alleging fraud or irregularities in the election observer process, that have been made, although they have been quickly found to be without merit.”
Chen said because Trump’s claims have been found to have no legal or factual merit by judges, most of them have been rejected so far.
“(For instance), a claim that Republican election observers were not allowed in the counting room was undermined when the lawyer had to admit that there were Republican observers in the counting room, and the question became whether they should be 20 feet away or 6 feet away,” he said.
While the Trump Administration has made it clear it wants to take its allegations to the Supreme Court, Chen said it would be difficult to see how the court would do anything or even agree to accept such a case, based on the fact that many of Trump’s claims are being dismissed in trial courts.
He said it could take months or years to get a case to the Supreme Court, and even then, they have complete discretion over whether to hear a case. Although the process could be expedited, Trump would still have to acquire decisions in his cases from either the highest court of a state or the intermediate federal court, the U.S. Courts of Appeals, to have a chance with the Supreme Court.
The case that has garnered the most attention so far has come out of Pennsylvania, Chen said. The allegation concerns whether the Pennsylvania Supreme Court acted illegally by allowing the counting of ballots received after Election Day, if they were postmarked on or before Nov. 3.
“The argument is that the Pennsylvania Supreme Court usurped the authority of the Pennsylvania state legislature,” he said. “That is not an allegation of fraud, but a contention of constitutional law under Article II of the U.S. Constitution, which delegates the power to the state legislature to determine the way to elect presidential electors.”
Chen said the number of ballots that were permitted despite being received after Election Day is too small to have an effect on the outcome of the election in Pennsylvania. While the case is still pending, he said it is unclear whether it is worth it for Trump and his team to pursue this issue.
Many people have expressed concerns over Trump’s cases going to the Supreme Court, as the court currently leans conservative. Chen said it is difficult to predict whether the justices’ political affiliations would affect their decisions.
“Of course, judges are not supposed to use political considerations in their decision-making, but legal principles,” he said. “There are some who say that a truly conservative judge would abhor (the) Supreme Court getting involved in deciding the results of her presidential election as (it is) completely outside the jurisdiction of the judicial branch.”
Chen said the Supreme Court’s intervention in Bush v. Gore was highly criticized for overstepping its role as a non-political branch of government, and the current justices may take this event into consideration if one of Trump’s cases is brought before them.
If the Supreme Court were to overturn the election results, it would set a precedent, he said. For this reason, Chen said he believes the chances of this occurring are nearly zero.
“Trump is getting his day in court to try to prove that there is some legal basis to change the results, the courts after considering his arguments are rejecting them, and they're doing so quite quickly,” he said.
President-elect Joe Biden and his team recently said they will consider legal options if Trump does not cooperate with the transition. Chen discussed how this could potentially work.
“There is a statute known as the Presidential Transition Act that determines how power is transferred from one administration to the next,” he said. “It requires the administrator of the General Services Administration (GSA) to engage in ‘ascertainment’ as to who the president-elect is.”
Chen said the GSA administrator has not done so yet, although once most states officially certify their results within the next two weeks, if the results anticipate Biden getting a majority of electoral votes, it will be impossible not to establish him as the president-elect.
“Probably at that point ... Biden could ask a court to force her to ‘ascertain’ that he is in fact the successful candidate,” he said. “All states effectively must certify the results by Dec. 8, and the Electoral College officially meets on Dec. 14.”