What Role Could The Supreme Court Play In The Election?
WASHINGTON, D.C. - MARCH 20: Morning light shines outside The United States Supreme Court building on March 20, 2017 in Washington, D.C. The Senate will hold a confirmation hearing for Supreme Court Nominee Neil Gorsuch. (Photo by Zach Gibson/Getty Images)
Zach Gibson/Getty Images

Though Joe Biden has been declared the winner of the 2020 presidential race, a variety of mitigating factors – the coronavirus pandemic, mail-in ballots, delays in vote counts – have mired the election in uncertainty. As the final vote tally in pivotal battleground states remains separated by a hair’s width, President Trump and his team have alleged election fraud and stated their intention of taking things “to the courts.” While there is a dearth of evidence to prove foul play at the moment, here’s how the Supreme Court may play the necessary role of arbitrator in the final stages of this deeply contentious election. 

State legislatures vs. federal courts

The main issue at the moment in contested states is how absentee ballots are being counted. Due, in part, to the current pandemic, federal courts altered state voting guidelines, a move that should have been the sole domain of state legislatures, according to conservative justices on the Supreme Court.

“Conservative justices,” AP News reported, “object to what they see as intrusions by federal judges who order last-minute changes to state election rules, even in the middle of the coronavirus pandemic. The power to alter absentee ballot deadlines and other voting issues rests with state legislatures, not federal courts, according to the conservative justices.”

If, in fact, the margin of victory for Biden remains narrow enough to demand a challenge from President Trump, “[a] more thorough examination [from the Supreme Court] could come either in a post-election challenge…or in a less tense setting that might not affect the 2020 vote, but would apply in the future.”

The current state of play in Pennsylvania 

Votes in Pennsylvania may require Supreme Court intervention. In particular, it’s possible that “segregating all ballots received after 8 p.m. on Election Day” might allow the “[Supreme] Court the opportunity to rule on whether those late-arriving ballots should be counted” according to Andrew McCarthy of the National Review.

As of Friday, Supreme Court Justice Samuel Alito ordered such late-arriving ballots in Pennsylvania to be separated but ordered the vote count to continue. 

“The order,” according to The Hill, “signed by conservative Justice Samuel Alito, left open the possibility that the justices could exclude the late-arriving ballots in a subsequent ruling, a move which Alito and at least two other conservative justices have previously signaled they may be inclined to take.”

The ballots in question are “between 3,000 and 4,000.” Without further intervention from the Supreme Court, discarding these votes would have little effect on the final outcome given Biden’s current margin of victory in Pennsylvania. 

What may be of greater significance is the “Pennsylvania Supreme Court ruling that upheld the state’s mail ballot due date extension.” This led Justices Alito, Thomas, and Gorsuch to suggest that the “Pennsylvania state court…encroached on the legislature’s constitutional authority over state elections” opening up the possibility for further rulings on the final tally in the state even with Biden declared the current winner.

Some historical precedence

More than a decade after the Civil War, the Supreme Court intervened in the presidential election of 1876 between Rutherford B. Hayes and Samuel Tilden due to “allegations of intimidation and fraud” from Democrats, according to The Conversation.

“[O]n Election Day,” The Conversation details, “there was widespread voter intimidation against African-American Republican voters throughout the South. Three of those Southern states – Florida, Louisiana and South Carolina – had Republican-dominated election boards. In those three states, some initial results seemed to indicate Tilden victories. But due to widespread allegations of intimidation and fraud, the election boards invalidated enough votes to give the states – and their electoral votes – to Hayes. With the electoral votes from all three states, Hayes would win a 185-184 majority in the Electoral College.”

In order to resolve the dispute, Congress formed “a bipartisan commission of 15 members of Congress and Supreme Court justices.” Though embroiled in its own controversies, the commission finally “awarded all the disputed electoral votes to Hayes.”

Most recently, the 2000 presidential election between George W. Bush and Al Gore forced the Supreme Court to intervene due to potential voting discrepancies in the state of Florida. 

Similar to the current election, the media went back and forth on whom it declared the winner of Florida, initially giving it to Gore then Bush before finally stating the “results for who would be the nation’s 43rd president were simply too close to call,” according to History.

To make matters worse, the very ballots used in Florida were up for scrutiny as well: “The ballots, themselves, became an issue of contention. The visually confusing paper punch-card ‘butterfly ballot,’ in which two columns of candidate names were separated by a middle column with marks to be punched through, was blamed for some Gore votes going to Pat Buchanan due to a misalignment of the names and marks.”

The Supreme Court ultimately ruled 5-4 to halt a recount with Bush ahead by a narrow margin. 

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