Can Donald Trump Litigate His Way to Victory via the Supreme Court? Not Likely

I’ve been saying consistently that the only way the 2020 presidential election ends up being decided by the courts is if there is a dispute in a state that is central to an electoral college victory and that the dispute in that state is so close (or there is such a massive failure in the election) that the election is within the margin of litigation.

As of this moment (though things can change) it does not appear that either condition will be met. It does not seem that Pennsylvania will be crucial to a Biden electoral college victory and so any litigation over ballots there would not matter.

Even if it came down to Pennsylvania, it would have to be so close that there would be something to litigate over. If it is tens of thousands of votes separating the candidates (as currently in the Michigan totals), it is virtually impossible that a recount or litigation could change an outcome.

Of course, if it does come down to a state like PA and it comes down to ballots arriving between Nov. 3 and 6, the Republicans can go back to the Supreme Court in an attempt to get those thrown out. For reasons I’ve explained, the reliance interest of the voters makes this very unlikely (and the Supreme Court passed up two chances to act on this).

The other lawsuits in PA don’t seem to present much hope for flipping a lot of votes; they involve what appears to be a relatively small number of provisional ballots.

So could the election be litigated to a conclusion? Sure. But it’s not likely unless there is significant tightening in both the electoral college projections and the absolute margin in a key state.

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