Trump says the election 'will end up in the Supreme Court.' Election experts explain why that's so ominous.

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published 24 September 2020

President Trump followed up his refusal Wednesday to commit to a peaceful transfer of power if he loses in November with a prediction election experts found equally ominous. "I think this will end up in the Supreme Court, and I think it's very important that we have nine justices," Trump told reporters in the White House. "I think it's better if you go before the election, because I think this scam that the Democrats are pulling — it's a scam — this scam will be before the United States Supreme Court, and I think having a 4-4 situation is not a good situation."

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Presumably the "scam" he's referring to is the expansion of mail-in ballots, a voting system he and his aides use and his campaign is encouraging his supporters to avail themselves of this year. Trump has been baselessly warning of mail-in vote fraud for months now, but he and his allies are also fighting hard in court, U.C. Irvine election law expert Richard Hasen writes at Slate, calling the situation "a five-alarm fire" and pointing to Barton Gellman's look at worst-case scenarios in The Atlantic.

The Trump team's litigation strategy "has become clear," Hasan writes: "Try to block the expansion of mail-in balloting whenever possible and, in a few key states, create enough chaos in the system and legal and political uncertainty in the results that the Supreme Court, Congress, or Republican legislatures can throw the election to Trump if the outcome is at all close or in doubt. It's a Hail Mary, but in a close enough election, we cannot count the possibility out. I've never been more worried about American democracy than I am right now."

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Trump "keeps saying that he is counting on the courts, the federal courts, to help him win," and that "he's not going to wait for the ballots to be counted," MSNBC's Chris Hayes pointed out Wednesday night. He and his allies "are also making this part of their explicit argument to fill Ruth Bader Ginsburg's seat on the Supreme Court. ... The Republicans already have a 5-3 majority of the court, but apparently they do not trust Chief Justice John Roberts to be enough of a hack to corruptly hand them the White House."

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Peter has worked as a news and culture writer and editor at The Week since the site's launch in 2008. He covers politics, world affairs, religion and cultural currents. His journalism career began as a copy editor at a financial newswire and has included editorial positions at The New York Times Magazine, Facts on File, and Oregon State University.