Legal Experts Scoff at Trump Campaign’s Newest Supreme Court Challenge, But Note ‘Concerning’ Reference to ‘Disruption’

The Trump campaign’s challenges to the 2020 presidential election just won’t stop. They filed a petition for a writ of certiorari with the United States Supreme Court over state court decisions from Pennsylvania. They want to knock out what they called “invalid” mail-in ballots from the count.

“Statutory requirements were eliminated regarding signature verification, the right of campaigns to challenge invalid mail ballots, mandates that mail voters fill in, date, and sign mail ballot declarations, and even the right of campaigns to observe the mail ballot canvassing process in a meaningful way,” they alleged in a filing dated Sunday.

They ask the court to hurry up their consideration of the petition. Congress is scheduled to formally accept the electoral college results on January 6, 2021.

The Trump campaign and supporters have faired abysmally in court battles taking place in battleground states such as Pennsylvania, Arizona, and Georgia. They have not gained President Donald Trump a single electoral vote. They gained no traction even when facing a largely conservative U.S. Supreme Court that featured three justices nominated by the incumbent.

Plaintiffs in this case referenced an Epoch Times report about electors in seven states casting “dueling votes for Trump.” But such electors were not legally valid; these were Trump supporters engaging in political theater.

Legal experts scoffed at the chances for this new challenge.

It’s also more than a little ironic that the Trump campaign is only now asking for “expedited consideration” of this new challenge to three PA Supreme Court decisions, the most recent of which was decided *four weeks* ago (and the first of which was decided in October).

— Steve Vladeck (@steve_vladeck) December 20, 2020

My official reaction:

https://t.co/GnyAniAdJt

— Josh Douglas (@JoshuaADouglas) December 20, 2020

#ELB: Trump Campaign Files Ridiculous New Expedited Cert Petition, Seeking Supreme Court Order to Overturn PA Election Results, Relying on Fake Electors for Trump from PA as Reported by the Epoch Times https://t.co/zbn0Ou9HQ6

— Rick Hasen (@rickhasen) December 20, 2020

Nonetheless, more than one professor raised an eyebrow at a passage in the motion for expedited consideration [emphasis ours]:

Finally, if this matter is not timely resolved, not only Petitioner, but the Nation as а whole may suffer injury from the resulting confusion. Indeed, the intense national and worldwide attention on the 2020 Presidential election only foreshadows the disruption that may well follow if the uncertainty and unfairness shrouding this election are allowed to persist. The importance of а prompt resolution of the federal constitutional questions presented by this case cannot be overstated.

“This is a truly shocking thing to say in a legal filing to the Supreme Court,” said Professor Josh Douglas, an election law expert from the University of Kentucky College of Law. “The ‘confusion’ about the election is due solely to the president and his allies’ refusal to accept defeat. And the ‘disruption that may well follow’ sure seems like a veiled threat.”

And the cert petition compares this election to–you guessed it–the election of 1860.

They are literally asking the Supreme Court to intervene by raising the specter of Civil War. https://t.co/vMLqcMEEmY pic.twitter.com/FHu2V8dyBU

— Josh Douglas (@JoshuaADouglas) December 20, 2020

The petition follows the day after New York Times reporting that Trump considered making attorney and conspiracy theorist Sidney Powell a special counsel for election fraud, and discussed pardoned former National Security Adviser Michael Flynn‘s idea of using the military to overturn some election results.

During the meeting, the president asked about Flynn’s suggestion of deploying the military, those briefed said. That was also shot down.

— Maggie Haberman (@maggieNYT) December 19, 2020

Election law expert Professor Rick Hasen of the University of California, Irvine School of Law called the “disruption” language “very concerning.” Besides that, he was dismissive of the legal challenge, and of the reference to alternate electors in The Epoch Times.

“I won’t go through all of the ridiculous things here, but this is an attempt to challenge PA Supreme Court cases in October and mid-November,” he wrote in a blog post. “There is absolutely no excuse to have waited this long, and to have tried to sue after the electoral college slates voted.”

The consensus is that all this is indeed a controversy, but of the plaintiffs’ own making.

You have to take this case to stop the disruption I’m causing.

Yeah, no. https://t.co/L8PgDet4sG

— Raffi Melkonian (@RMFifthCircuit) December 20, 2020

[Image via Drew Angerer/Getty Images]