I mention this because President Trump did himself no favors with his rash 2:30 a.m. statement that he believes he has won the election and that, if it is denied him, there must have been fraud. I won’t belabor the points ably made by others that these remarks were irresponsible and undermine a process the president should be trying to legitimize, for the country’s sake and his own. My narrower point is that, from a legal standpoint, the statement was a blunder.
Again, in the weeks before yesterday, the Court had made it abundantly clear that it wants no part of this case. Now, Trump has made matters thermonuclear by alleging fraud, even though none has been proved (for now, we just have an increased possibility of fraud). Since the Supreme Court does not have to take the case, the president’s remarks have strengthened the hand of Roberts and other justices who appear to be arguing that the Court should let things play out for a few weeks more and maybe the election will resolve itself without the Court’s intervention.
As noted above, if the Court does not agree to expedited consideration of the Pennsylvania case, the Democrats’ response to the Republican petition for certiorari review would not be due until November 25. That gives Chief Justice Roberts an opening to say that, for now, the Court need be in no hurry. The justices could wait and see how the Pennsylvania ballot count goes. If the state authorities announce a result, and it appears that the late-arriving ballots would not change the result, the Court could just decline to hear the case.
In any event, the political part of the election is at an end. The president can do no more at this point to persuade voters. If we are headed into a litigation phase, he should leave public statements to his very capable lawyers. This is not a situation where he or the country will be well served by his penchant to wing it in an incendiary way.
