The confirmation of Justice Amy Coney Barrett to fill the Supreme Court vacancy created by Justice Ruth Bader Ginsburg’s death has prompted justifiable worries that she will join her conservative colleagues in deciding a case that resolves the election in President Trump’s favor. Those fears were stoked by the President himself when, at the time he nominated Justice Barrett, he claimed that she was urgently needed on the Court in order to resolve election-related disputes.
“I think this will end up in the Supreme Court,” Trump said at the time, 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.”
If Trump gets his way and the election ends up in the Supreme Court, it can do severe damage to American democracy. The October 26 ruling that Wisconsin can only count mail ballots received by Election Day is but one example of that damage. The Court blocked reasonable efforts to assure that all eligible voters in that state—insofar as practicable in the midst of the still escalating pandemic—have the opportunity to vote and have their votes counted.
Two days later, over the objection of Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch, the Court seemed to reverse course when it allowed extended periods for vote counting in Pennsylvania and North Carolina.
Nonetheless, the Wisconsin case fueled speculation that the Court is now setting itself up to play a decisive role in the coming weeks. In his concurring opinion, Justice Brett Kavanaugh, sounding a lot like Trump himself, warned that the Court might have to act to “avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election.”
Kavanaugh’s warning suggests that the Court’s conservative majority, augmented by Justice Barrett, stands ready to tilt the scales in the President’s direction.
Moreover, reports indicate that the Trump forces may seize on likely delays in vote counting and ongoing election contests to persuade Republican-controlled legislatures to appoint Republican electors before all the votes are counted and a final determination of the election result can be made. Such premature, ad hoc appointments of Trump electors could be communicated to Congress pursuant to the Electoral Count Act of 1887 (ECA) but notably would not qualify for the Act’s “safe harbor” deadline for states to choose electors that they can ensure will be accepted by Congress.
Faced with such appointments, Democratic governors can and should submit their own returns to make sure that every vote counts. Whatever the Republicans do, sending forward the votes of a slate of Biden-Harris electors will keep the issue of who is the rightful winner of the presidency before Congress and before the American people.
With this possibility in mind, and with the prospect that the Trump campaign may sue to try to stop post-election day vote counting or to invalidate ballots, the post-election period looks like it will be a litigation-fest. Prior to 2000, an average of 96 election law cases were brought every year in state and federal courts. By 2004, that average jumped to 254, most of them filed at the state level. This year, the Stanford-MIT Healthy Election Project reports that as of October 28, 418 such cases had already been filed in 44 states.
But we need to remember that even as some of those cases make their way to the Supreme Court, the Court does not have the authority to determine the election winner.
Federal law, particularly the now much discussed ECA, assigns the ultimate determination of the winner to the Congress, which alone decides which electoral votes get counted in the event of a dispute. There is nothing in American history or legal precedent that authorizes even a conservative-activist Court to second-guess what the Congress decides.
The ECA recognizes the possibility that there may be more than one return listing electors from a particular state or states. In such instances, it directs the two Houses to consider separately which return lists the “lawful votes of the legally appointed electors.” If the Houses agree, those votes “shall be counted which the two Houses . . . concurrently decide were cast by lawful electors appointed in accordance with the laws of the State.” If the Houses disagree, the “votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.”
No court can stop Congress from performing its lawful role, nor can it overturn its determination. In fact, the Supreme Court rarely has gotten entangled in cases about a presidential election. It happened first in 1876 when five justices served, along with five senators and five congressmen, on a commission that reviewed the contest between Rutherford B. Hayes and Samuel Tilden. But the Court itself issued no ruling.
More than a century later, the Court entered the fray in Bush v. Gore. But it is important to remember that in that case the justices did not purport to determine the election result. Rather, they blocked completion of a recount in the state of Florida. They did so where the recount included some votes in the state and excluded others, a circumstance hardly likely to recur.
Moreover, had there been an objection to the Florida electors presented to Congress, Bush v. Gore would not have foreclosed its consideration. Had the two Houses been so disposed—surely they would not have been given that the House elected in 2000 was controlled by Republicans and the Senate was evenly split—they could by agreement have rejected the Florida electors in favor of a slate supporting Al Gore, had one been submitted.
In addition, Bush v Gore, by its own terms, is never supposed to be used as precedent.
Whatever Justice Barrett and her new colleagues may want, or try, to do, the outcome of the presidential election will be determined by the political will of Republicans and Democrats in statehouses and the halls of Congress, not by legal fiat.
There is nothing the Supreme Court can do to prevent governors from certifying slates of electors that actually reflect the vote of the people in their states. And it cannot prevent Congress from determining who the rightful electors are and discharging its exclusive responsibility to say who will serve as the next President of the United States.