“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.
Florida State University law professor Michael Morley agrees, noting that Biden still has several paths to victory.
If Biden carries Pennsylvania, where his lead is growing substantially, he doesn’t need to carry any other state to win.
And if he doesn’t carry Pennsylvania, he has other paths to victory. Assuming the AP projection of a Biden win in Arizona holds, the former vice president needs only Nevada or Georgia to win, and for now, he is leading in both.
“The easy thing” [for the justices] to do is to say, ‘Why bother,'” says professor Derek Muller, of the University of Iowa School of Law. Muller notes that some conservative Supreme Court justices have expressed an interest in “revisiting” the question of whether a state legislature’s majority party view of the law supersedes a state supreme court interpretation. But, he adds, that it is “unlikely” the justices want to insert themselves into the political brambles when, as of now, there is no evidence of major fraud or misbehavior that would make a difference to the outcome of the election.
Right now, Trump, whether he likes it or not, would appear to be “outside what’s called the margin of litigation,” observes professor Edward Foley, director of The Ohio State University election law program. That’s what happened to Democratic presidential candidate John Kerry in 2004, Foley explains. Kerry was teed up and ready to bring legal challenges in Ohio, but, “the votes just weren’t there” in large enough numbers to justify the litigation.