When President Donald Trump vowed to ask the Supreme Court to halt ballot counting, he wasn’t actually outlining his campaign’s plan. In fact, some Republicans say, Trump didn’t even understand what he was calling for.
But buried in Trump’s confusing claim was the seed of his campaign’s actual legal strategy, one they have been building for more than a year with the help of thousands of lawyers and that finally took shape this week, according to Republicans familiar with the situation.
Trump’s campaign on Wednesday filed lawsuits to halt the counting of ballots in Michigan, Pennsylvania and Georgia — all key swing states. It’s contesting ballots in a Democratic stronghold in Nevada. And it could appeal a decision to permit late-arriving absentee ballots in North Carolina, as long as they were mailed before the election deadline.
On top of that, the campaign is calling for a recount in Wisconsin and, possibly, Michigan.
In the coming days, the success or failure of that strategy will determine whether Trump or Democrat Joe Biden is inaugurated as president in January.
“I don’t think the president’s campaign should be faulted for using available legal processes to determine the winner,” said Scott Jennings, who worked under President George W. Bush and is close to the Trump White House. “Why shouldn’t they be allowed to pursue this? They have rights and they have the lawyers and it’s the American way.”
Biden is leading Trump in the popular vote and is on the cusp of securing the electoral votes he needs to win the presidency. But Trump’s campaign insists it remains competitive in states still counting votes, and claims that several states Trump seems to have lost by thin margins may have miscalculated the results. In many places, it’s taking this case to the courts.
Yet that’s not what Trump signaled at the White House shortly after 2:30 a.m. on Wednesday, when the president confusingly proclaimed he would ask the Supreme Court to stop “all voting” — even though voting had already stopped — because “we don’t want them to find any ballots at four o’clock in the morning and add them to the list.”
The next morning, on a pair of conference calls with reporters, Trump campaign officials never mentioned the Supreme Court.
“He just doesn’t know how it works,” said a Republican close to the White House. “It’s just out of ignorance of the process.”
The campaign also sent out fundraising emails and texts all night to raise money for legal costs to fight the election, but those similarly didn’t mention the Supreme Court.
“For four years, he’s just thrown stuff out there to see if it sticks,” added another Republican close to the campaign. “He’s not a lawyer.”
The campaign can’t go directly to the Supreme Court to stop all the vote counting, said Ned Foley, director of election law at the Moritz College of Law at Ohio State University. Rather, Foley said, Republicans need to pursue specific cases that they could eventually appeal to the Supreme Court.
"The president is getting ahead of the process because he wants to show the American people he’s fighting for every vote," said a former senior White House official.
Bob Bauer, an attorney for the Biden campaign, told reporters Wednesday that if Trump goes to go to the Supreme Court, "he will be in for one of the most embarrassing defeats a president ever suffered before the highest court of the land."
Trump has more than once predicted the election would end up at the Supreme Court, using it as one of his rationales for moving swiftly to fill Ruth Bader Ginsburg’s Supreme Court seat less than a month before the election. Trump ultimately succeeded, pushing through Amy Coney Barrett, who was sworn in last week, ensuring a 6-3 conservative majority that may help Trump in any election-related cases.
The Trump campaign and Republican National Committee did not respond to requests for comment.
Instead of putting its focus on the Supreme Court, though, the Trump campaign is continuing a state-by-state-based legal battle it has been waging against mail-in ballots for months.
During the campaign, Republicans went after attempts to allow the counting of mail-in ballots that arrived shortly after Election Day, even though they were sent before the election. The moves were intended to offset any delays as the U.S. Postal Service tried to handle a pandemic-induced surge of remote ballots.
Republicans argued local election officials and judges were changing the rules too close to an election. And they insisted there was no way to prove all of the late-arriving ballots were mailed prior to the election.
While Republicans won some legal challenges on mail-in ballot deadlines, they lost some, most notably in Pennsylvania, which is allowing a three-day extension for remote votes to arrive and still be counted.
Now, Republicans are back at it, once again challenging any ballots still being counted after Election Day.
Trump’s campaign on Wednesday filed lawsuits to stop vote counting in Michigan, Pennsylvania and Georgia, alleging it had not been given adequate access to observe the process and that officials were improperly counting late-arriving ballots.
Biden is projected to win Michigan, while Pennsylvania still has too many outstanding votes to make a call. Trump won both states in 2016 after decades of Democratic victories. In Georgia, Trump has a slim lead with tens of thousands of votes left to count.
Pennsylvania, with its 20 electoral votes, is quickly emerging as the most pivotal state for the Trump campaign’s lawsuits.
While the Supreme Court has already twice declined to hear Republicans’ appeal to throw out the late-arriving mail-in ballots, it did leave the door open to taking up the case after Election Day.
The only case about vote-counting deadlines that could be teed up at the high court right now is from Pennsylvania, where Democrats and Republicans have fought over an extension to accept mail-in ballots postmarked on or before Election Day for three days past the election.
Late Wednesday, Trump’s campaign formally asked the Supreme Court to intervene again.
“Given last night’s results, the vote in Pennsylvania may well determine the next President of the United States,” the campaign’s motion read. “And this Court, not the Pennsylvania Supreme Court, should have the final say on the relevant and dispositive legal questions.”
Republicans have also filed two other lawsuits in the state seeking to halt the counting of votes from people who were given the chance to correct mistakes on their mail-in ballot.
The campaign is giving these lawsuits the prime-time treatment, sending popular surrogates to the state to publicize them.
The campaign on Wednesday dispatched Eric and Lara Trump, the president’s son and daughter-in-law, to Philadelphia for a news conference. They were joined by Rudy Giulinai, the president’s personal attorney, former Florida Attorney General Pam Bondi, a close Trump ally, and Corey Lewandowski, a top campaign adviser.
"This is beyond anything I have ever seen before," Giuliani said. "Do you think we’re stupid? Do you think we’re fools? You know something, Democrats do think you’re stupid. And they do think you’re fools.”
The Trump campaign’s other state-level suits have faced setbacks.
In Nevada, the state Supreme Court on Tuesday declined a request from Republicans to immediately stop the counting of some mail-in ballots in Clark County, where ballots can be included if they are postmarked by Election Day and arrive by Nov. 10. But the case is still active and parties must file briefs in the case by Monday.
And in North Carolina, the campaign unsuccessfully fought to stop the state from allowing ballots postmarked by election day to be counted if they arrive by Nov. 12. The Supreme Court declined a request to step in. But that decision, too, could be reconsidered.
Up in Wisconsin, the Trump campaign is calling for a recount, citing unspecified “reports of irregularities in several Wisconsin counties which raise serious doubts about the validity of the results.”
The campaign is also likely to ask for a recount in Michigan as well, according to people close to the campaign.
Daniel Lippman and Josh Gerstein contributed to this report.
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