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This is a sort of sequel to this other question When the US president is declared after winning enough states for 270 electoral votes, have they definitely won?

President Trump is pursuing a number of legal options to challenge the election results in several states. There's even been talk of him going to the US supreme court.

But can the courts actually help him to win and overturn the result in any state? If the final decision is with the electors it would seem to me that the best a court can do is provide a recommendation and surely it's the electors he should be petitioning rather than the courts. What power do the courts have in bringing about a certain result?

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What a court can do is to rule that a policy determination made by a state and local election administrator (or the District of Columbia) was erroneous, or that some factual error was made in tabulation of votes.

For that to change the results, the ruling has to affect enough votes to change the outcome.

For example, a court could rule that it was illegal to count mail-in ballots received after election day in Pennsylvania. If it did, the vote from those ballots could be removed from the count.

Similarly, if ballots were not counted because the election officials insisted on matching middle initials between voter registrations and the ballot returned, and a court held that this was improper, the court could order the election administrator to count those ballots and add the result of counting those ballots to the total.

Any court ruling merely determines who gets to serve in the electoral college. If Biden wins, his slate of electors casts those ballots. If Trump wins, his slate of electors cast those ballots. Electors are chosen for their reliable loyalty. But, once the court decision and the voters determine who the electors will be, the outcome of the electoral vote is dependent upon how the particular electors chosen cast their ballots.

Historically, one or two electors or so in any given Presidential election, out of 538, are unfaithful and vote for someone other than the candidate who nominated them. But this has never changed an election outcome in U.S. history. The U.S. Supreme Court has recently ruled that an elector may be punished criminally for failing to cast the elector's vote as state law requires (in a Colorado case) but that doesn't resolve the question of whether the elector's vote can be changed to conform to state law. The majority view among legal scholars is that it cannot.

Once electors have been selected and cast their ballots on December 14, 2020, their voting choices are non-justiciable and Congress counts the electoral vote in January 2021, and can decide whether or not to honor that vote, but the courts have no further role in the process.

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    "Any court ruling merely determines who gets to serve in the electoral college." I think that it should be emphasized that the courts rule only on issues on how elections are conducted. They have no authority to issue any rulings on who gets to serve in the electoral college (other than very limited issues, such as whether minors or noncitizens can serve), only to issue rulings that affect who serves. – Acccumulation Nov 13 '20 at 3:24
  • Can I suggest a clarification on the para beginning with "Any court ruling..." I think you mean to say that a court ruling may impact the numerical results of an election, subsequently those numerical results will determine the slate of electors for that state. Then: A Biden "win" of a court case may or may not impact the numerical result, and may have no impact on the slate of electors (Confusion between "win" the court case versus "win" the majority vote in that state) – BobE Nov 15 '20 at 4:35
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    just a note on faithless electors - in some states electors can be replaced if they fail to cast their vote as required. thehill.com/regulation/court-battles/… – BobE Nov 15 '20 at 4:41
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    @BobE Not convinced that those statutes, unlike statutes that punish electors for casting the wrong vote, are constitutional. – ohwilleke Nov 17 '20 at 0:34
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Bush v. Gore comes to mind here. Wikipedia provides the following timeline of the situation after the 2000 presidential election in Florida:

On December 8, the Florida Supreme Court had ordered a statewide recount of all undervotes, over 61,000 ballots that the vote tabulation machines had missed. The Bush campaign immediately asked the U.S. Supreme Court to stay the decision and halt the recount. Justice Antonin Scalia, convinced that all the manual recounts being performed in Florida's counties were illegitimate, urged his colleagues to grant the stay immediately. On December 9, the five conservative justices on the Court granted the stay for Bush, with Scalia citing "irreparable harm" that could befall Bush, as the recounts would cast "a needless and unjustified cloud" over Bush's legitimacy. In dissent, Justice John Paul Stevens wrote that "counting every legally cast vote cannot constitute irreparable harm." Oral arguments were scheduled for December 11.

More interesting for the purpose of your question is the section on 'relevant law'. Aside from the Equal Protection Clause, it names three excerpts of US law, the first two have a clear connection to elections (quoting from Wikipedia):

Article II, § 1, cl. 2 specifies the number of electors per state, and, most relevant to this case, specifies the manner in which those electors are selected, stipulating that:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ...

Section 2 of the Electoral Count Act, now codified in 3 U.S.C. § 5, regulates the "determination of controversy as to appointment of electors" in presidential elections. Of particular relevance to this case was the so-called "safe harbor" provision, which assures Congress' deference to states in their appointments of electors if done by a specified deadline:

If any State shall have provided [...] for its final determination of [...] the appointment of all or any of the electors of such State [...] at least six days before the time fixed for the meeting of the electors, such determination [...] shall be conclusive.

The first excerpt states that it is up to the state legislatures to appoint its electors. The second excerpt on "safe harbor" is described as follows in relation to the 2020 by the LA Times:

For the 2020 election, the states have until Dec. 8 — six days before the electoral college must meet — to count votes and settle all election disputes. If states can’t figure things out by that “safe harbor” day, the newly elected Congress gains the ability to determine the state’s winner when lawmakers meet to count electoral votes Jan. 6.


Back to your questions:

But can the courts actually help him to win and overturn the result in any state?

Possibly. One way to get there would be to prevent a state from providing its final determination of the appointment of all its electors before the safe harbor deadline.

If the final decision is with the electors it would seem to me that the best a court can do is provide a recommendation and surely it's the electors he should be petitioning rather than the courts.

It would be much easier to get the preferred slate of electors than it is to convince individual electors to change their vote. By locking in the states you won (making sure they provide their final determination by safe harbor day), and contesting the results in states you lose to the extent that the courts prevent the state from making that determination by safe harbor day, there could be a way for the courts to play a role in changing which electors get chosen.

Specifically, if it gets past safe harbor day and there are different slates of electors, there could be a replay of the 1876 election. Again from the [LA Times article]:

Hoping to avoid a repeat, Congress passed the Electoral Count Act of 1887, which gave states the safe harbor deadline by which they could resolve their own disputes without Congress getting involved. After that deadline, if state officials submit multiple sets of conflicting electoral votes, the U.S. House and Senate must agree on which set to accept. (If the chambers don’t agree, the votes certified by the state’s governor prevail.)

What power do the courts have in bringing about a certain result?

In the end, I think it all boils down to article II of the constitution which gives the state legislatures the power to appoint the electors. The courts, however, may be involved with interpreting what the legislature meant.

This was also a topic in the Bush v. Gore case. For example, from Wikipedia:

Bush also argued that the Florida Supreme Court's ruling violated Article II, § 1, cl. 2 of the U.S. Constitution. Essentially, Bush argued that the Florida Supreme Court's interpretation of Florida law was so erroneous that its ruling had the effect of making new law. Since this "new law" had not been directed by the Florida legislature, it violated Article II. Bush argued that Article II gives the federal judiciary the power to interpret state election law in presidential elections to ensure that the intent of the state legislature is followed.

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The short answer is that the courts can only rule as to whether the Constitution and laws (federal and state) were followed.

As a previous excellent answer pointed out, that might change the allotted Electoral College votes. In this election that is quite unlikely.

What is more likely is that the Trump campaign is contesting the results because once he concedes, all interest in audits of the electoral system instantly vaporizes. After the 2000 Florida fiasco (remember the "hanging chads"?), the state made a significant effort to ensure that there would not be a repeat. Those improvements would not have come if the results had not been so close, and hotly contested. Even if people doubt that there is much opportunity for cheating, they might support some cleanup/safeguards for the various states' electoral processes, just to avoid future disputes.

Edit: True, recounts/audits are sometimes triggered automatically, and audits may be done routinely. But in at least in some states, a recount is NOT automatic, and must be requested. Furthermore legislative changes to election systems will come from public pressure/interest, or from legislators' perceptions of the results, both of which depend heavily on whether the results are contested.

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    I'd also remind that in the FL 2000 election there were a series of concessions followed by "I take that back" - none of those "concessions" had an impact on recounting or auditing.. (IMO, concession speeches have no legal impact. They are a showing of courtesy and grace) – BobE Nov 15 '20 at 4:48
  • @BobE I think SCOTUS halt the recount in Bush v. Gore? Wikipedia states: "On December 9, the five conservative justices on the Court granted the stay for Bush, with Scalia citing "irreparable harm" that could befall Bush, as the recounts would cast "a needless and unjustified cloud" over Bush's legitimacy." – JJJ Nov 15 '20 at 18:08
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    @JJJ - Concessions and retractions were made prior to SCOTUS taking up this issue. Those concession or retractions had no bearing on the court case, in other words: It didn't matter. That was my only point, that concessions speeches do not vaporize audits/recounts in progress. – BobE Nov 15 '20 at 21:17
  • @BobE yea, my point was more about the court overruling the recount. Maybe my comment is a bit out of place here. I'll see, maybe I can turn it into an answer. ;p – JJJ Nov 15 '20 at 21:22
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    I'd suggest to Richard, just eliminate the first sentence of that para. The remainder of the para is fine as it stands and (I think) makes his point, – BobE Nov 15 '20 at 21:25

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