US election battle to move from polling booths to the courtroom

Following months of campaigning, a final result in the US presidential election may still be some days, or even weeks, away. The closer-than-expected election results saw Democratic candidate Joe Biden edge towards victory as absentee ballots were counted in key battleground states like Wisconsin, Michigan and Pennsylvania.

This election has already been one of the most litigated in history. Dozens of lawsuits were launched by Democrats and Republicans in recent months over the rules governing the voting process. In particular, the expansion of absentee ballot options by several states prompted several lawsuits by Republicans.

In Nevada, the Trump campaign joined a lawsuit challenging the decision to automatically send mail-in ballots to all registered voters. The challenge was overturned.

Several challenges

In recent weeks it joined forces with Republicans to stop the count in the Las Vegas area, arguing that “meaningful observation” of signature-checking is impossible. Several cases – most involving the question of when states can accept mail-in ballots – have been brought in Wisconsin, North Carolina and Pennsylvania.

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The supreme court has weighed in on several challenges, but has delivered mixed signals, permitting absentee ballots to be accepted in Pennsylvania up to three days after election day, but blocking an extension in Wisconsin.

As polls closed on Tuesday evening, Republicans were already lodging fresh legal challenges in Pennsylvania. Republican candidates brought cases in state and federal court over a decision to allow voters to correct their ballots.

In his press conference in the East Room of the White House on Wednesday morning, President Donald Trump declared: "We'll be going to the US supreme court. We want all voting to stop."

In reality, the president would not go directly to the supreme court if he wanted to challenge the result. A case would go through the lower courts. If he lost, he could appeal and it could eventually get to the supreme court.

On Wednesday afternoon the Trump campaign announced it was launching legal action in Michigan, arguing that it had not been provided with meaningful access to counting locations.

Both the Trump and Biden campaigns have been staffing up with lawyers. In the days leading up to the election, the Trump campaign was directing donors to pledge money to “keep fighting even after election day”.

The Biden campaign said on Wednesday that they were ready for any legal challenge by the president.

"This attempt . . . to defeat the voters' intent, to undermine the democracy is absolutely certain to fail," the campaign's senior legal adviser, former White House counsel Bill Bauer, told reporters on Wednesday, outlining previous Republican efforts in recent weeks to limit the vote which have failed. "We have lawyers ready to go, we have papers ready to go within an hour of any step they may take," he said.

Further, the Trump campaign on Wednesday said it will request a recount in Wisconsin, where Biden is ahead by about 20,000 votes. Each state has different rules regarding recounts. In Wisconsin, a recount can only begin after votes are certified, which could take some time.

As the world watches Trump’s next move – he has repeatedly threatened to “go in with our lawyers” after the result –  the wheels of America’s constitutional norms will continue to turn.

Recounts

Under the constitution, the process of selecting a president and vice-president follows a strict timetable. According to the Electoral Count Act, passed in 1887, states are freed from legal challenges if they certify election results at least six days before the state's electors meet.

With the state electors – who officially cast the ballots for each state’s nominee for president and vice-president – due to gather on December 14th this year, this means that the so-called safe harbour deadline falls on December 8th.

However, technically if legal disputes are unresolved, a state legislature in some cases can appoint the state's electors. This happened, for example, in 2000 when the Florida legislature nominated George W Bush even as the supreme court was deciding on the recounts.

The reality of presidential elections in the US is that a winner is not decided upon until one candidate concedes. America also has a relatively long transition period between a presidential election and the inauguration. What is clear is that the inauguration of the president will occur on January 20th next year, according to the constitution.

No doubt, however, the current make-up of the supreme court is encouraging Trump. Since last week's confirmation of Amy Coney Barrett, the court now has a conservative majority of six to three. Three members of the court – chief justice John Roberts, Brett Kavanaugh and Barrett – were involved in some way in the Republican litigation efforts during the disputed 2000 election.

A written opinion by Kavanaugh last month on a Wisconsin voting case suggesting that late-arriving ballots could “flip” the results has concerned Democrats. As the US prepares for a contentious few days and potentially weeks, the supreme court could conceivably play a role in deciding the outcome of the election.