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Will the Supreme Court ride to Donald Trump's rescue? Don't count on it.

Richard Wolf
USA TODAY

WASHINGTON – As his hope of winning reelection at the polls seemingly fades, President Donald Trump still professes faith in one place where he thinks he has the votes: the Supreme Court.

Three of the nine justices raised the specter last week of revisiting election results in Pennsylvania, after the court allowed ballots mailed by Election Day and received up to three days later to be counted. 

A fourth justice lauded the court's decision that all Wisconsin ballots be received by Election Day in order to “avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election.”

And a fifth justice, Amy Coney Barrett, was rushed through the Senate confirmation process last month after Trump said he wanted her on the bench to rule on any election-related cases. 

But the 6-3 conservative majority that Trump and Senate Republicans built over the past four years likely is in no position to save his presidency. It would take a razor-thin margin or a major legal dispute in a state whose electoral votes could hand the White House to Trump or Democrat Joe Biden. Such a reprise of the Bush v. Gore case in 2000, when the court ruled 5-4 along ideological lines that vote recounts in Florida had to stop after a monthlong dispute, is not anticipated. 

Perhaps more fundamentally, it would take a specific controversy that has reached the justices after being heard in several state or federal courts – not the nebulous demand Trump issued in Wednesday's wee hours that "we want all voting to stop."

Government workers in Milwaukee, Wis., processed ballots on Election Day.

Despite a flurry of lawsuits initiated by the Trump-Pence campaign from Georgia to Nevada, Pennsylvania is the only state with an election case pending at the Supreme Court. The president's lawyers sought Wednesday to intervene in that case, which challenges the state's three-day extension of the deadline for receiving legally cast mail-in ballots. 

More:Georgia, Michigan judges toss Trump suits over ballots as lawsuits are filed in Nevada and Pennsylvania

There are legitimate arguments over the state court's authority to overrule the state Legislature's Election Day deadline. Three justices – Samuel Alito, Clarence Thomas and Neil Gorsuch – wrote last week that the high court's action leaving in place the later deadline could be revisited after the election. For now, those ballots are being segregated to allow for court challenges.

But there are equally strong arguments for the Supreme Court to leave state issues to state courts or, if it does get involved, to leave the Nov. 6 deadline in place because that is what voters relied upon in choosing when to mail their ballots.

More:Too few late-arriving Penn. ballots to affect final outcome of Trump-Biden race, secretary of state says

One way or the other, such a case only would demand the attention of the nation's highest court if those segregated Pennsylvania ballots held the fate of the election. The Pennsylvania Democratic Party made that point Thursday, telling the justices in response to the Trump campaign's motion that it is "not remotely clear" the number of late ballots will be enough to prove decisive in the presidential race.

Biden lawyer: Trump in for an 'embarrassing defeat'

For now, Trump's rhetoric about taking the election to the Supreme Court is just that. Beyond those Pennsylvania ballots arriving by Nov. 6, his path there remains unclear. 

That led Biden campaign attorney Bob Bauer to muse that if Trump insists on getting there, "he will be in for one of the most embarrassing defeats a president has ever suffered by the highest court in the land.”

Democratic presidential candidate former Vice President Joe Biden speaks Wednesday, Nov. 4, 2020, in Wilmington, Del.

Edward Foley, director of the election law program at Ohio State University Moritz College of Law, said litigation over voting often is used to spread disinformation and sow doubt in the results of an election. 

When the Supreme Court ruled last week that Wisconsin could not accept mail ballots received after polls closed, Associate Justice Brett Kavanaugh said the more lenient rules allow for "chaos and suspicions of impropriety." That seemed to echo Trump's position that all ballots be in by Election Day.

Kavanaugh's notion that late-arriving absentee ballots could be seen to “flip the results of an election" prompted a sharp rebuke from Associate Justice Elena Kagan.

“There are no results to ‘flip’ until all valid votes are counted,” Kagan wrote in a footnote of her dissenting opinion. “And nothing could be more ‘suspicious’ or ‘improper’ than refusing to tally votes once the clock strikes 12 on election night.”

The high court's actions in Pennsylvania and Wisconsin were but the latest in a series of election skirmishes that have found their way to the court this year. They date back to April, when the justices ruled 5-4 along ideological lines that absentee voting in Wisconsin could not be extended past the primary election date. Challenges from Florida to Idaho involved issues ranging from felons' voting rights to signatures on petitions.

Now that Election Day is past, the high court may play no role in the eventual outcome. Or it could be the final arbiter.

That specter led Senate Democrats to suggest during Barrett's confirmation process that because of Trump's rhetoric, she should recuse herself from all election cases.

After privately offering her the nomination but before announcing it, Trump said, "I think this will end up in the Supreme Court, and I think it's very important we have nine justices."

Justices have sole discretion, in conjunction with their colleagues on the court, in deciding whether to recuse themselves from a case. When they do, it's usually for more personal reasons, such as family interests or financial investments.

"I certainly hope that all members of the committee have more confidence in my integrity than to think that I would allow myself to be used as a pawn to decide the election for the American people," Barrett said in refusing to address recusal directly.

'As neutral as they can'

With or without the newest justice's participation, one colleague is almost certain to recommend the court keep a low profile in the post-election world: Chief Justice John Roberts.

First, Roberts prefers to give state courts leeway. In allowing Pennsylvania's extended deadline for absentee ballots but denying Wisconsin's, he said the difference was that the Pennsylvania case "implicated the authority of state courts to apply their own constitutions to election regulations." The Wisconsin case, he said, "involves federal intrusion on state lawmaking processes."

President Donald Trump passes by an unsmiling Chief Justice John Roberts before delivering his State of the Union address in the chamber of the U.S. House of Representatives earlier this year.

More generally, the chief justice steers his court away from politics whenever possible. That was his intentionlast yearwhen he ruled in a 5-4 opinion that federal courts have no role to play in evaluating partisan gerrymandering by state legislatures

During an appearance in New York City last year, Roberts said the court must decide cases "according to the Constitution and laws, without fear or favor."

"That’s necessary," he said, "to avoid the politicization of the court.”

While the current spate of Trump campaign lawsuits in Georgia, Michigan, Nevada and Pennsylvania likely won't result in a Supreme Court showdown like Bush v. Gore, a more unlikely scenario remains a distant possibility.

If ballot-counting drags on for weeks and Trump refuses to concede, a disgruntled state legislature could seek to appoint a competing slate of presidential electors – the men and women selected to cast their state's Electoral College ballots in December. That would raise constitutional issues that the Supreme Court likely would need to resolve.

Most election law experts hope it doesn't come to that.

"If they get involved in a polarized way and in a way that undermines the voting process ... that could create a crisis scenario," said Wendy Weiser, director of the Brennan Center for Justice's democracy program at New York University School of Law.

"The Supreme Court would love to not have to play any role," said Steven Huefner, director of clinical programs at Ohio State University Moritz College of Law. "If, like in 2000, the case gets to them that they just think they have to handle, they're going to try and be able to seem as neutral as they can."