Can the President Stop the Counting of Votes

Tin President Trump Stop Legally Cast Votes from Existence Counted? BU's Lauren Mattioli and Robert Tsai on Supreme Court's Possible Intervention

Protesters gathered in Pennsylvania Th to demand the counting of every vote as President Trump turned to the courts to win reelection. Photo by the Yomiuri Shimbun via AP Images

Politics

Can President Trump Really Cease the Vote Counting?

Two BU experts, one on ramble law and one on American authorities, explicate the Supreme Courtroom'south possible intervention in ballot counting and whatever connectedness to Bush-league five. Gore

With President Trump threatening to ask the US Supreme Courtroom to halt the counting of legally submitted votes from Tuesday's election, will courts determine the adjacent president as they did in 2000 with Bush-league v. Gore?

Before Tuesday, SCOTUS had already dabbed a toe into the election, in two decisions last month. The courtroom allowed Pennsylvania, a battlefield state, to count mail-in ballots that arrive inside three days of Election Day, as long as they were postmarked on that day. But iv justices hinted they'd be open up to revisiting the case. The justices also rejected Democratic attempts in Wisconsin to have mail-in ballots counted after Election Day.

Trump's court resort came on a chaotic solar day, later on Joe Biden was declared the winner in some other battlefield state, Wisconsin. Equally of early Thursday, neither human had clinched victory, but the Associated Press put Biden merely six Electoral Higher votes shy of the necessary 270 to exist elected president. In Pennsylvania, state Republicans already take sued to prevent counties from letting voters correct missing signatures and other mistakes on postal service-in ballots, which are probable to favor Democrat Joe Biden.

As well, the Trump campaign has sued to finish Michigan's tallying until the state provides access to vote-counting sites.

The legal wrangling conjured memories of the 2000 election and Bush v. Gore , where the courtroom halted a recount of Florida's disputed votes, handing the presidency to George W. Bush-league.

BU Today asked Robert Tsai, who joins the School of Law in January as a professor of constabulary, and Lauren Mattioli, College of Arts & Sciences assistant professor of political science, to appraise the opening shots in this legal war. Tsai is an expert on ramble law and law and government, and Mattioli on American regime institutions and interbranch relationships.

Q&A

With Robert Tsai and Lauren Mattioli

BU Today: Does Trump have the authority to seek a halt to the vote counting, and how could even the loftier courtroom end the counting of legally submitted ballots?

Tsai: The Trump administration is request for permission to bring together the existing [Pennsylvania GOP] lawsuit. That's the nearly probable vehicle to go any ballot issue in front of the Supreme Courtroom. There were 4 justices who had shown some interest in the GOP position. Three were really interested in the theory that the Equal Protection Clause of the Constitution would exist violated, that [Pennsylvania] might be irresolute the rules midstream by moving [counting of] those postal service-in ballots a couple of days. In my view, that'south a pretty frightening idea. The question is, what would Amy Coney Barrett do?

The thing is not to be overly alarmed most information technology yet, because that lawsuit is about anything that comes in after Election Twenty-four hour period. None of the votes being counted right now are affected past that lawsuit. As it stands in Pennsylvania, there are votes outstanding from the Philly area, expected to be heavily pro-Biden. He could wind up [winning the country].

Mattioli: I believe the Trump entrada tin request an injunction to stop the vote count. I do non foresee that beingness successful, given the recent Wisconsin and Pennsylvania cases. The Trump campaign tin file whatsoever number of requests for an injunction, merely it doesn't mean that any of them take merit, or that they won't be summarily dismissed.

Is there any precedent in Bush v. Gore that Trump could cite in an appeal to SCOTUS this time?

Tsai: Information technology looks like in that location are at to the lowest degree 3 justices who might be willing to expand the logic of Bush v. Gore. There was that [non-precedent] language in Bush-league 5. Gore, just almost people were skeptical whether that could be true. It seems strange to say we have a legal principle that just works for one case ever. Someone did a count; Bush v. Gore has been cited hundreds of times. It's not a instance that's been left in that location unused.

Mattioli: Bush-league v. Gore states that it tin can not exist used as a precedent for future cases, so it strikes me equally unwise to utilize it as the basis for a legal claim.

Did the high courtroom's decisions last month virtually various states' counting procedures portend anything near how they might act vis-a-vis Trump's threatened asking?

Tsai: Information technology might. In that location take been a slew of lawsuits by country GOPs. I tend to proceed an eye on the arguments they're making to meet if anything resembles this 1 the Supreme Court showed interest in, in Pennsylvania. I'one thousand not seeing a lot of that.

Mattioli: The contempo Pennsylvania and Wisconsin cases remind us the Court determines the rules of the game, in part. Simply their rulings are not fabricated because the president demands it. The Supreme Courtroom is more tolerant of state courts' interpreting their own ballot laws rather than federal courts. So, if a case comes via state court, I predict it will be more successful than ane that originates in federal court.

Large picture: Do you think this election will be settled by the courts?

Tsai: There's a lot to however play out, but the worst Armageddon scenario has been averted, that is to say, getting to a 269-269 tie [in the Electoral College]. If Biden hangs on to what is leaning his direction, he's real shut. Even if a federal approximate interferes, it's less likely to exist decisive in the effect.

Mattioli: I do not think this election volition be settled by courts. There take been no legal challenges which credibly threaten to halt the ongoing counting of ballots. The counting of those ballots will, based on what we know about the outstanding vote, reveal a narrow but decisive Biden victory. I doubt that the Court will deign to consider a case where it will be forced to dirty its hands in the muck of the campaign without a potent gamble that it will make the difference in the terminal upshot.

 We can think about the Trump campaign'due south challenges to the election consequence. Maybe this challenge is a function of genuine business organization. I don't call back information technology is genuine, because there hasn't been evidence of widespread voter fraud; the Trump entrada has never expressed noninstrumental interest in election integrity before; and the voter suppression that has occurred has by and large impacted likely Democrat voters. Second possibility: President Trump knows he has lost and he is having a hard fourth dimension confronting the truth. Third, and I think the most likely possibility, is that the legal challenges purchase time. If the Trump entrada believes it can win in some of these holdout states—Arizona, Nevada, Georgia—and does, that will make Pennsylvania decisive. If Pennsylvania is decisive, it will be difficult for the Supreme Courtroom to ignore a challenge based on Pennsylvania'south election assistants. I think the legal challenges are meant to buy fourth dimension.

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Source: https://www.bu.edu/articles/2020/can-president-trump-really-stop-the-vote-counting/

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