US election: Donald Trump faces uphill battle in getting to the Supreme Court

Donald Trump continues to publicly insist that the US election result is premature and has repeatedly said he will fight in court. And according to four Trump advisers, the president and his team have already mapped out their plan of attack.

Speaking to Axios, the Trump campaign team said it plans to "brandish obituaries" of people who are dead but supposedly voted. The obituaries for those who apparently cast ballots for Joe Biden will form part of "specific pieces of evidence" in Trump's court battle to delegitimise the election results. Trump's team is yet to provide any evidence of voter fraud and corruption related to the US election and their claims are all unsubstantiated.

The President's potential fight in the Supreme Court to dispute Biden's presidential election win is shaping up to be a brutal battle, but two sources have told Fox News that Trump would concede and execute a peaceful transfer of power if the legal challenges can't change the election outcome.

Minutes after US media declared Biden the victor, the President rejected their conclusion, saying he would prove in court that he was the winner. "The simple fact is this election is far from over," Trump said in a statement. "Legal votes decide who is president, not the news media."

The President and his supporters believe they have a chance with their legal battles primarily because of the election battle between Al Gore and George Bush back in 2000, which rested on a recount in one state: Florida. With Bush ahead by just 537 votes in the Sunshine State, and with problems with the state's punch-card ballots, the Gore campaign sought a statewide recount. The Bush campaign appealed to the US Supreme Court, which ultimately ruled to block a full recount, handing Florida – and the election – to Bush.

Experts say such lawsuits are only practical if focused on a real problem and the vote gap is narrow. In states disputed by Trump, such as Pennsylvania, the vote count is much wider. Professor Richard Hasen, an election law expert at the University of California, said: "Trump's litigation strategy is going nowhere. It is not going to make a difference to the election outcome."

If a campaign or candidate sues over state regulations, they have to first exhaust their options in the state justice system before heading to federal court and the US Supreme Court. By piggybacking on the existing ballot extension case, the Trump campaign has raised its chances of reaching the high court.

A case would put the political leanings of the court's six conservative and three liberal justices in the spotlight – especially on Amy Coney Barrett, who joined the court only last month after being nominated by Trump and receiving a fast-tracked confirmation hearing from Republicans in the Senate. Trump said he rushed her appointment in part so she could be in place to hear any election cases.

But since the 2000 election, the Supreme Court has been cautious about getting involved in voting matters that are decided by states, aware that it risks its standing as an independent body - especially since it effectively handed the presidency to Bush 20 years ago.

Trump campaign communications director Tim Murtaugh earlier tweeted photos of the campaign's headquarters – covered in a photoshopped article from 2000 claiming Al Gore had won the presidency. The tweet, which has since been deleted, read: "Greeting staff at @TeamTrump HQ this morning, a reminder that the media doesn't select the President." Washington Post fact-checker Glenn Kessler found the real version, which shows the opposite – that Bush won.

The Trump campaign lawsuits attack a unique aspect of the 2020 election – that millions of voters cast mail-in ballots because of the coronavirus pandemic. The Covid-19 threat forced states to promote mailed ballots and change rules on how they would be collected, verified and tabulated. That included extending the periods for receiving ballots, due to an overburdened US Postal Service, adding time for vote counting. The Republicans say some of those changes were decided or implemented improperly and in ways that favour Democrats.

In Pennsylvania, the Trump campaign said it would join an existing Republican suit over the state's deadline extension for receiving mail-in ballots. The Pennsylvania Supreme Court ruled the extension legal, but the US Supreme Court has still declined to get involved. If successful, they have the potential to disqualify tens of thousands of ballots that arrived after November 3.

In one respect, Trump is right: Legal votes do indeed decide who becomes president. The election is not truly over until each state formally certifies its vote, and this will take place over the coming weeks. But with nearly all the 150 million-plus ballots counted, he simply does not have enough votes in the Electoral College that formally chooses the president, US media collectively concluded on Saturday.

It's highly unlikely the Supreme Court would move to overturn election results with most states recording thousands of extra votes for Biden. The Trump campaign's legal team are in for an uphill battle.