Trump v Biden: What happens if the US Election result goes to the Supreme Court

A lengthy legal battle could be on the cards as incumbent US President Donald Trump threatens to take the US election result to the Supreme Court in an attempt to secure a second term.

His campaign has already filed lawsuits in Michigan, Pennsylvania and Georgia in an attempt to stop ballots being counted there as the swing states make a late shift in favour of opponent Joe Biden.

It has also requested a recount in Wisconsin - a state whose 10 electoral votes went to Biden - as Trump took to Twitter to describe mail-in votes as "ballot dumps" and claim they amount to a "fraud on the American public".

In a televised speech on Wednesday morning (local time), the Republican candidate falsely claimed victory, took issue with key battleground states counting mail-in ballots and vowed to take the result to the Supreme Court.

"This is an embarrassment to our country. We were getting ready to win this election. Frankly, we did win this election. We did win this election. So our goal now is to ensure the integrity for the good of this nation," he said.

"We'll be going to the US Supreme Court... We want all voting to stop. We don't want them to find any ballots at four o'clock in the morning and add them to the list. Okay? It's a very sad moment."

Protests have kicked off in the hours since the speech, with his supporters in Detroit, Michigan taking to voting facilities to disrupt the ballot-counting process and the hashtag #StopTheCount trending on social media.

So will Trump's ploy to tie up the election in the courts work? We take a look.

What Trump's campaign has done so far

Lawsuits have been filed by the President's campaign in Michigan, Pennsylvania and Georgia.

In Michigan and Pennsylvania, the suits seek to stop the states counting ballots on the grounds that the campaign has not been given "meaningful access" to observe the vote-counting process and review ballots that have already been cast.

In Georgia, the lawsuit alleges that a Republican observer watched a poll worker take unprocessed absentee ballots from a back room and mix them in with processed ones.

Trump's campaign is also seeking a legal intervention in Pennsylvania, where the Supreme Court has already ruled that ballots received up to three days after the election can be counted.

While the President is claiming foul play, there is no evidence of voting fraud in Pennsylvania. The state is waiting on 3.1 million mail-in ballots, which are allowed to be counted until Friday so long as they were sent by November 3.

Both Trump and Biden claimed they were on track to win the election in speeches on Tuesday (local time).
Both Trump and Biden claimed they were on track to win the election in speeches on Tuesday (local time). Photo credit: Getty

Trump is just behind Biden in Michigan, and slightly ahead in Pennsylvania and Georgia - but the margin between the pair in the latter two states is small and continues to diminish as more mailed ballots are counted.

In Wisconsin, a state that's already been called for Biden, Trump is pushing for a recount. His campaign manager claims there were "irregularities in several Wisconsin counties".

Biden hasn't responded directly to the lawsuits or recount request, but his campaign has begun asking supporters to donate to a 'Biden Fight Fund' in preparation for a legal battle.

So what's Trump's strategy?

It's understood Trump is laying the foundations for a contest in the Supreme Court - where six of the nine justices are Republicans - over whether newly counted votes in swing states should be counted.

Should it reach that level, his lawyers are expected to argue that the measures undertaken to make voting easier in the midst of the COVID-19 pandemic have left the election at risk of fraud.

At this stage, however, everything will go through lower state or federal courts - and as there's no historical precedent for halting a ballot count, it's difficult to know what will happen.

All litigation will go through lower state or federal courts before heading to the Supreme Court.
All litigation will go through lower state or federal courts before heading to the Supreme Court. Photo credit: Getty

The only similar incident occurred during the 2000 election, when legal challenges over voting procedures in Florida ultimately led to George Bush being elected US President.

The New York Times reports that the Supreme Court is only likely to intervene if the late-arriving mail-in ballots are enough to swing the state, and if the vote in Pennsylvania is enough to determine the result of the entire election.

This is because there is a pending Republican appeal at the US Supreme Court over whether Pennsylvania can continue to count votes that arrive by mail three days after election day - an extension that was ordered by the state's top court.

The court refused to rule out ballots that arrived after election day, but conservative Supreme Court Justices Alito, Thomas and Gorsuch criticised the decision as one that had "needlessly created conditions that could lead to serious post-election problems".

This has left the door open for Trump's legal challenge on these grounds.

It's understood Pennsylvania's electoral officials have been told to keep votes that arrived after 8pm on election day separate to those that arrived before, in preparation for such a court battle.

Is Trump's tactic likely to work?

Two election-related cases will be heard later on Wednesday (local time) in Pennsylvania - an attempt to call the result there and the counting of late-arriving mail-in ballots into question.

However this could be scuttled early, with Pennsylvania requiring large amounts of proof to successfully challenge election protocols  - including a signed affidavit describing allegations of malpractice.

Experts say the legal grounds for Trump's lawsuits are shaky at very best.

Simon Marks, a journalist and head of international broadcaster Feature Story News, told The AM Show on Thursday Trump was wrongly referring to postal votes as ballot dumps.

"He insists all those votes are being fraudulently found…  They're being counted, and in Michigan, Wisconsin, Arizona and Nevada, they're giving the edge to Joe Biden," he explained.

"There is - just to be clear - no evidence at all, despite the President's repeated claims, that millions of ballots are fraudulently cast in America's presidential elections. It is not true. It does not happen. It hasn't happened this time around. His own top national security officials confirmed it's not an issue."

Trump's lawyers are expected to argue that measures to make voting easier in the midst of COVID-19 have left the election at risk of fraud.
Trump's lawyers are expected to argue that measures to make voting easier in the midst of COVID-19 have left the election at risk of fraud. Photo credit: Reuters

Marks is not the only person to argue Trump's lawsuits are nonsense.

Justin Levitt, an election law professor at Loyola Law school, told the Financial Times "there's no actual legal basis" behind any of his threats, while Pennsylvania Attorney General Josh Shapiro condemned his lawsuit in the state as "more a political document than a legal document" in a CNN interview.

Even Republican election lawyer Benjamin Ginsberg admitted it was a long shot, telling CNN any attempt to toss out legally cast votes would probably "be viewed by any court including the Supreme Court as just a massive disenfranchisement that would be frowned upon".

Meanwhile Trump attorney Jenna Ellis defended the move in an interview with Fox News, saying the President simply "wants to make sure that the election is not stolen".