Like Babe Ruth pointing a bat over a fence, Donald Trump last month called his shot.
“I think this will end up in the supreme court,” Trump told reporters, referring to the election. “And I think it’s very important that we have nine justices. I think having a 4-4 situation is not a good situation.”
Earlier this week, Trump got his ninth justice, with the confirmation of Amy Coney Barrett to the seat vacated by the late justice Ruth Bader Ginsburg.
But is the 2020 presidential election really headed for the supreme court? Here’s a look at the situation:
Can Barrett hand Trump the election?
Probably not. The most likely scenario is that American voters alone will decide the election.
For all its flaws and added complications this year from the coronavirus pandemic, the US elections system has basic features to ensure a high correlation between the vote that is cast and the result that is announced.
It is highly decentralized, with thousands of jurisdictions staffed by members of each major party, all using different technologies and independently reporting results, which can be reviewed or recounted, with both sides and the media watching out for irregularities before, during and after election day. It might take awhile, and the tragic story of disenfranchisement in the United States continues, but elections officials have vowed to deliver an accurate count.
Sometimes, however, US elections are very close, and in an era of nihilistic partisanship, court fights during elections are becoming increasingly common. Such disputes might land with increasing frequency before the supreme court.
It is extremely rare for a presidential election to land before the supreme court. In 1876, five justices sat on a commission that decided the 1876 race for Rutherford B Hayes over Samuel Tilden.
In the modern era, it has happened just once, in 2000, after the Florida state supreme court ordered a recount in a razor-thin race that the Republican secretary of state said George W Bush had won. Republicans challenged the recount order and the case went to the supreme court, which sustained the challenge and stopped the recount.
How might a 2020 election-supreme court scenario unfold?
The supreme court has already issued two significant rulings in the election, one that allowed ballots received in Pennsylvania up to three days after election day to be counted, and a second blocking ballots received in Wisconsin after election day from being counted. Lower courts have issued numerous decisions on issues around voting and counting.
Republicans in Pennsylvania have vowed to renew their challenge to ballots received after election day, and if they can push the case back to the supreme court, they might find victory this time with Barrett making a majority.
But if the supreme court ends up getting involved in a major way in the presidential election, it would likely be to weigh in on a question that is not yet clear because we don’t know what legal conflicts will play out in which states.
In Bush v Gore (2000), lawyers on the Republican side argued that the state supreme court had usurped the legislature’s authority by ordering a recount. The supreme court stopped the recount, not by relying on the argument about the court bigfooting the legislature, but by finding that different standards for vote-counting in different counties violated the equal protection clause.
Is there a chance Barrett would recuse herself from any case involving a president who appointed her so recently?
At her confirmation hearing, Barrett dodged just this question. “I commit to you to fully and faithfully applying the law of recusal,” she said. “And part of the law is to consider any appearance questions. And I will apply the factors that other justices have before me in determining whether the circumstances require my recusal or not. But I can’t offer a legal conclusion right now about the outcome of the decision I would reach.”
Trump, for one, is unable to see any conflict of interest in having a justice whom he just installed potentially deciding his political fate.
“I don’t think she has any conflict at all,” Trump said. “It would be totally up to her.”
What about the other justices?
Ironically, Trump might never have needed Barrett to win a hypothetical supreme court ruling on the fate of the election, because a 5-3 conservative majority was already in place before she was installed.
Only the decision by Chief Justice John Roberts to side with the court’s liberal wing, for example, created the 4-4 tie that let stand Pennsylvania’s provision for counting ballots arriving after election day. But Roberts went the other direction in the Wisconsin case, explaining that “different bodies of law and different precedents govern these two situations”.
In concurring opinions in the Wisconsin ruling, the two other justices Trump has installed, Neil Gorsuch and Brett Kavanaugh, signaled that they would take a stern view of any lower court wading into a contested election. (Most of the states where the chances for a contested election are seen as strongest also have Republican-controlled legislatures, meaning that a stern view of court intervention equates with giving free rein to Republicans.)
Kavanaugh in particular took a dim view of court intervention, digging up an argument about the broad power of the state legislatures in elections from Bush v Gore. The argument has not frequently surfaced because it is seen as ignoring the possibility that partisan state legislatures might run elections in such a way as to violate the constitutional right to vote or other rights.
Of course Brett Kavanaugh likes Bush v. Gore. "Hanging Chad" sounds like one of the guys he used to boof with.
— Stephen Colbert (@StephenAtHome) October 28, 2020