If President Trump’s attempts to challenge the election results fail at the Supreme Court, it could have lasting consequences for the Republican Party by demoralizing Trump voters with high hopes for conservative judges.
Trump campaign efforts to contest the results in multiple close battleground states over a month after the presidential election now hinge on the Supreme Court, where conservatives hold a 6-3 majority thanks to the president’s nominations.
“If Trump judges and GOP SC justices continue to reject all pleas for legal relief in this corrupted election, the political case for ‘conservative judges’ loses a lot of sway,” tweeted Julie Kelly, an American Greatness writer and prominent pro-Trump social media influencer after the justices denied a request to stop the certification of the Pennsylvania vote.
“The Court ducked,” tweeted Mark Levin, an influential conservative talk show host who served as chief of staff for Attorney General Ed Meese in the Reagan Justice Department in the 1980s.
The focus now shifts to a lawsuit filed by Texas challenging President-elect Joe Biden’s win on the basis that Pennsylvania, Michigan, Wisconsin, and Georgia mishandled mail-in ballots and violated their own election laws.
Sixteen other states Trump won in November — Alabama, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and West Virginia — threw their support behind the Texas suit on Wednesday, as did Trump himself.
“President Trump is fully committed to ensuring election integrity and fulfilling his oath to defend and protect the United States Constitution against state officials’ misconduct and violations of law that irredeemably compromised this election,” said Trump attorney and senior campaign legal adviser Jenna Ellis in a statement. “We look forward to the Supreme Court resolving these important issues of election integrity that ultimately affect all Americans, and providing a remedy to the corruption that occurred.”
Polls regularly show that rank-and-file Republicans and Trump voters have substantial doubts about the fairness and accuracy of the 2020 election, in which Biden was declared the winner even as the GOP generally performed well in down-ballot races. Trump has refused to concede and is still challenging the results, though his lawyers have so far had little success in court.
This could become a major issue for Republicans as Trump appointees, including most recently Justice Amy Coney Barrett, and other conservative justices prepare to weigh in. The country is already in uncharted territory with the legal dispute now that the “safe harbor” date by which states are required by federal law to settle on their slates of electors has already passed. The Bush v. Gore Supreme Court decision resolving the 2000 presidential election was handed down on the day of the safe harbor date, and Democratic presidential nominee Al Gore conceded the following day.
The Texas lawsuit keeps the legal challenges going and emboldens those who want to drag the dispute into January. The Electoral College will vote for president and vice president on Monday. Biden would win 306 electoral votes, more than the 270 required to win, with the disputed states still in his column. Then, there will be a pair of Senate runoffs in Georgia determining which party holds the majority.
Republicans are hopeful the base won’t lose faith in conservative judges even if the Supreme Court rules against Trump.
“We’ve already seen that the U.S. Supreme Court sided with religious organizations in a dispute over COVID-19 restrictions put in place by New York Gov. Andrew Cuomo limiting the number of people attending religious services,” said Ron Bonjean, a Republican strategist who led the communications push for Justice Neil Gorsuch during his confirmation hearings. “Aside from Trump’s failed election challenge, there will likely be other high-profile decisions during the course of the Biden administration that Trump voters will be enthusiastic about in the long run.”
“Anytime a judge makes a ruling the base doesn’t like, it loses enthusiasm temporarily,” said Republican strategist John Feehery. “Look at what has been happening with John Roberts. Conservatives really don’t like him.”
“That being the case, these lawsuits were always going to be a long shot, and I don’t think that conservatives are going to suddenly lose faith in Amy Coney Barrett or Clarence Thomas if they rule against the president, which seems likely to me,” Feehery added.
Win or lose, conservative judges will be a big part of Trump’s legacy, with more than 220 confirmed under his watch. This includes three Supreme Court justices: Barrett, Gorsuch, and Brett Kavanaugh. Some argue that during the election challenges, conservative judges have vindicated the idea that they are impartial umpires calling balls and strikes.
“The role of the judge is to decide these cases, not deliver policy results,” said a conservative court watcher. “Or election results.”
