Will This Election Be A Replay Of ‘Bush v. Gore’ At The Supreme Court? Not Likely

With President Trump railing about “fraud,” and pointing to the Supreme Court — with three of his appointees — as the final arbiter, the question many are asking is this: What are the chances that the high court will actually get involved? In short, will 2020 be a replay of Bush v. Gore?

Election experts of all political persuasions say it is highly unlikely. The best bet the president might have is in Pennsylvania, where Republicans twice before asked the justices to intervene, both times unsuccessfully. On the first try, the GOP challenged a decision by the Pennsylvania Supreme Court. The state court, interpreting the state constitution, extended the time for receiving absentee ballots by three days, as long as the ballots were postmarked by Election Day or had no legible postmark.

The U.S. Supreme Court deadlocked 4-to-4 when the presented with the issue the first time in late October. That meant the state court decision remained in place. On a second try, the vote was 8-to-0 after Pennsylvania officials agreed to segregate those votes received after Election Day.

The Trump campaign is still trying to get the Supreme Court to intervene, asking for it to hear arguments in the case. But experts say that while that is possible, it is unlikely, for the simple reason that the votes that were received after Election Day are sufficiently small in number that even now, with ballots still being counted in Pennsylvania, Joe Biden’s lead is far more than the number of ballots received after Election Day.

“Unless something new happens, I don’t see a viable path for Trump to litigate his way out of an Electoral College loss,” says election law expert Richard Hasen, of the University of California, Irvine.