Will the election be decided by the Supreme Court?

Mike Bebernes
·Editor
·8 min read

“The 360” shows you diverse perspectives on the day’s top stories and debates.

What’s happening

President Trump has made no secret of the role that the Supreme Court could play in helping him win reelection. After the death of liberal justice Ruth Bader Ginsburg, Trump argued that the Senate should move quickly to confirm Amy Coney Barrett to fill the vacancy because she could be the deciding vote in a legal challenge that decides the election. He later said he is “counting on” the court to challenge mail-in ballots, which he falsely claims are rife with fraud. In the early morning hours on Friday, he suggested that Joe Biden can only claim the presidency if the court signs off on what he called a “ridiculous win.”

Barrett, who was sworn in Tuesday, gives the Supreme Court a 6-3 conservative majority, which includes three justices appointed by Trump. During her confirmation hearings Barrett largely declined to predict how she might rule on hypothetical future cases, including a possible contested election. She also wouldn’t commit to recusing herself from any election-related cases.

Changes to election procedures in many states have sparked an unprecedented wave of legal challenges, many involving Republicans trying to block Democrats’ attempts to expand opportunities for ballots to be cast, collected and counted. Some of those cases have already made their way to the Supreme Court. In the past week, the Supreme Court has weighed in on three separate cases concerning whether mail-in ballots postmarked by Election Day but received afterward could be counted in key swing states. Two of those cases, involving Pennsylvania and North Carolina, ended in Democrats’ favor. In the third, concerning Wisconsin, the justices sided with Republicans.

The Supreme Court has, of course, played a decisive role in a presidential contest in recent history. In 2000, the court ordered that a recount of contested ballots in Florida be halted, effectively awarding the presidency to George W. Bush over Al Gore. Three current Supreme Court justices — Barrett, Brett Kavanaugh and Chief Justice John Roberts — worked as lawyers for the Republican side during the Bush v. Gore saga.

Why there’s debate

While polls show Trump trailing Joe Biden by a significant margin, it’s entirely possible that Trump could win in a fair contest without the courts being involved. But Trump’s comments, plus the newly expanded conservative majority, have raised fears among Democrats that the Supreme Court may be poised to hand him an illegitimate reelection victory.

Democrats’ most common nightmare scenario goes something like this: Trump, holding a lead on election night thanks to a disproportionate number of Republicans who plan to vote in-person, declares victory and mounts a legal challenge to prevent the remaining mail-in ballots from being counted in one or more critical swing states. The six conservative justices, prioritizing partisan loyalty over a fair result, rule in Trump’s favor. Others have posited a less dramatic series of events where the court signs off on just enough of Republican efforts to restrict voting to tip the race to Trump.

Many legal scholars argue that Democrats’ fears are largely unfounded. It’s unfair to assume that conservative justices would rule to overturn a clear Biden victory for purely political reasons, they say. Doing so would be a major blow to the legitimacy of the Supreme Court from which it may never recover and could be the final straw that inspires Democrats to expand seats on the court. Trump’s false claims that mail-in ballots are inherently fraudulent aren’t enough to prop up a substantive legal challenge to the results of a legitimate election, experts say.

Even if the justices would act so cynically, it’s very unlikely that they would even have the chance to steal the election on Trump’s behalf, experts say. For such a scenario to be possible, the race would have to play out so that a single swing state would decide who wins the electoral college. Vote counts in that state would then have to be so close that the remaining uncounted mail-in ballots would determine who wins that state. Finally, there would need to be legal standing for the Supreme Court — rather than state courts — to rule on the matter. Each of these individual circumstances is unlikely. The odds they all happen together are extremely slim, some experts say.

Perspectives

Believers

Barrett could be the deciding vote in a partisan ruling that decides the election

“Ginsburg’s untimely death may ensure Trump’s reelection. … We may be on the road to having a president who is not elected by the will of the people, but by unelected judges.” — James D. Zirin, The Hill

The court may aid Republican efforts to suppress the votes of likely Democrat voters

“The will of the American people only matters, after all, if everyone is able to give voice to that will on the ballot. The Trump campaign, meanwhile, is doing whatever it can to keep Americans in a few key battleground states from doing so. And with the help of Republicans and stacked courts, they could succeed.” — Eric Lutz, Vanity Fair

A larger, more contentious repeat of the Bush v. Gore decision is entirely possible

“With Barrett’s ascension, the Supreme Court’s capture will be complete. And a redux of 2000 is a real possibility. And like most sequels, this one is sure to be bloodier, louder and more chaotic than the original.” — Cristian Farias, New York Daily News

Recent rulings have signaled a willingness among some justices to back Trump’s challenges

“It was never completely clear to me how Trump could convince the world his claims of mail-in ballot fraud were credible, or how he could turn a muddied result into victory. Now we have one Supreme Court justice identifying with Trump’s alleged horror of post-Election Night uncertainty, and two Supreme Court justices pointing the way to a state legislative hijacking of the results. Both owe their lifetime appointments to the incumbent president.” — Ed Kilgore, New York

Barrett’s confirmation makes the court more likely to intervene in election-related cases

“With Barrett installed on the bench at lightning speed, there are now five ultraconservative justices prepared to interfere with states’ efforts to count their citizens’ every vote.” — Dahlia Lithwick and Mark Joseph Stern, Slate

Skeptics

Trump’s potential challenges are unlikely to hold up under legal scrutiny

“This will likely prove another way that Trump’s efforts to corrupt the election are getting thwarted. Given that Trump’s telegraphing of his schemes is what’s driving millions to vote early and remain on high alert, it might also prove another way his corruption blew up in his face.” — Greg Sargent, Washington Post

The court may be wary of intervening to decide the election

“Courts generally try to avoid intervening in elections in a way that could affect the outcome. In particular, they don’t like to step on voters’ rights by throwing out ballots that have been cast in good faith under an existing set of rules, even if the court decides those rules are actually unconstitutional.” — Jonathan Lai, Philadelphia Inquirer

The series of events that would put the election into the court’s hands is unlikely

“A Supreme Court case to determine the 2020 election would first need to meet several unlikely conditions: A narrow electoral college count nationwide, with a legal challenge about voting in one or more states that could determine the outcome, and those challenges would depend on federal law and not just state law.” — Todd Ruger, Roll Call

Democratic fearmongering has made the court more likely to act in Biden’s favor

“If the justices make what the media-Democrat complex deems to be the ‘wrong’ decision — if Trump wins and the justices, correctly applying the law, rule that ballots disallowed under state statutory law may not be counted, even if they might otherwise have swung the election to Biden — then all hell will break loose. The justices will catalyze the Left’s radical demand to pack the Court.” — Andrew C. McCarthy, National Review

It shouldn't be assumed that the court would definitely rule in Trump’s favor

“Barrett might not play to type [on] the high court. Casting a swing vote amid the furious heat of a disputed election would risk triggering an uproar, would define her own tenure in its infancy and would certainly fuel Democratic demands to pack the court with new liberal justices — a move that ultimately may concern conservatives more than Trump’s fate.” — Stephen Collinson, CNN

A ruling in Trump’s favor wouldn’t necessarily be final

“In the 2000 election, the Supreme Court’s decision effectively settled the election, but only because both parties and the people chose to accept the decision. … Whether the public would accept an electoral result determined by a state supreme court, or some combination of state court and federal court decisions, seems much more doubtful.” — John E. Finn, Conversation

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