Could the presidential election be decided in the Supreme Court?
Summary
President Trump has predicted that the Presidential election could be so close that it needs to be decided by the Supreme Court. Now that Justice Amy Coney Barrett has been confirmed to SCOTUS, many fear that this could secure a Trump win or take the election out of the hands of the voters.
- In the first Presidential Debate, President Trump said that he was “counting on [the Supreme Court] to look at the ballots” amid the presidential election.
- A presidential election has never gone to the Federal Supreme Court. However, for all intents and purposes, the 2000 presidential election between George W. Bush and Al Gore was decided in Florida’s State Supreme Court after serious questions arose surrounding ballot counting and recounting procedures. The Court eventually ruled in favor of Republicans, who wanted to count absentee ballots which arrived after election day and throw out in-person ballots that were not filled out exactly according to the rules. As a young lawyer, Amy Coney Barrett provided “research and briefing assistance” on the case.
- The Supreme Court has already made rulings on two significant issues relevant to the November 3 election. On 19 October, the Court ruled to allow ballots received within three days of election day to be counted, even if they are not postmarked before the election. On 26 October, the Court ruled to overturn a lower court’s decision which allowed Wisconsin ballots to be counted within six days of election day. Republicans have vowed to appeal the former decision; democrats have vowed to appeal latter.
- In order for an issue to be heard in the Supreme Court, it must either be appealed by several circuit and state courts, or fall under the Supreme Court’s original jurisdiction. A case very rarely reaches the Supreme Court directly.
- Thus, it is highly unlikely that the outcome of the election will be decided by the Supreme Court instead of the voters.
- Still, Democrats have called for Amy Coney Barrett to recuse herself from any and all cases related to the election that arrive in the Supreme Court. She has not committed to doing so. Even without her vote, however, SCOTUS is stacked with a 5-3 conservative majority.
- Insists that Trump is making a bid to sway the election using the Supreme Court. Mother Jones reports that Trump “wants a repeat of Bush v Gore,” while the New York Times says that he nominated Amy Coney Barrett “in case of an Election Day dispute.” Vanity Fair says that Trump is obsessed with “stealing the election”, and Slate reports about the Supreme Court nomination as if the presidential election is already decided.
- Points out that the election is unlikely to go to the Supreme Court; if it does, it is unlikely to become a partisan politics. The Economist writes that Supreme Court Justices are inherently nonpartisan, and instead make objective decisions based off of legal approaches to the Constitution and existing legislation.
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© Evelyn Torsher, 2020
