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Posted in Uncategorized on November 10, 2020   |  by Gary Burger

Can the Supreme Court Decide this Presidential Election?

Presidental Election 2020

The popular vote in the Presidential election of 2020 is approaching a record-setting 140 million votes. The outcome of this election hangs in the balance as votes are tallied in several key swing states. As we wait eagerly for the announcement of a winner, it is important to remember that this delay can be largely attributed to the state voting laws in these particular states.

For instance, in Georgia, over 250,000 mail ballots remain to be counted. Michigan has reported that 100,000 still need to be counted and Nevada will have until November 12th to finish counting votes. In North Carolina, mail ballots postmarked by November 3rd can be received and added to the total numbers until November 12th. The state of Pennsylvania requires officials to wait until the morning of Election Day to process mail-in ballots and accepts ballots postmarked by November 3rd as long as they arrive within three days.

Meanwhile, Wisconsin is one of six states that does not allow election officials to start processing absentee ballots before election day and although Wisconsin has been called in Biden’s favor, the Trump campaign has already stated publicly that it will pursue a recount in the state of Wisconsin.

Supreme Court and the Election

As the wait for election results continues, it becomes increasingly important to consider the potential election disputes that may arise as well as the Supreme Court’s jurisdiction in resolving such disputes.

The Constitution provides that the settlement of presidential election disputes first happens within the state legal system under authority granted by Article II, § 1. Only in the elections of 1876 and 2000 has a presidential election landed before the United States Supreme Court.

Justice Breyer articulated the Court’s reluctance to involve themselves in resolving Presidential election disputes in Bush v. Gore: “However awkward or difficult it may be for Congress to resolve difficult electoral disputes, Congress, being a political body, expresses the people’s will far more accurately than does an unelected Court.” Bush v. Gore 531 U.S. 98 (2000) (quoting Justice Breyer). In 2020, the Supreme Court has issued a few substantial rulings pertaining to state voting laws.

The first allowed ballots received in Pennsylvania up to three days after election day to be counted. The second is a ruling which blocked ballots received in Wisconsin after election day from being counted. Lastly, the Court ruled in favor of allowing absentee ballots in North Carolina to be received and accepted up to November 12th.

Article II requires that presidential electors of every state meet on the same day to cast their votes for president. Congress has specified that date as Monday, December 14th, as Congress is entitled to do. Up until that time, state law may determine the method of appointing a state’s electors.

Article II grants state legislatures broad authority in assigning presidential electors, and this is especially important to consider in battleground states such as Pennsylvania, Michigan and North Carolina because all four of these states have Republican-controlled legislatures.

The framers of the Constitution did not intend for the Supreme Court to determine the outcome of a presidential election and it remains that the Supreme Court will refrain from resolving an electoral dispute unless state methods for appointing electors implicate constitutional or other federal legal protections.

The 12th Amendment clearly grants Congress the authority to count votes, but the Court’s involvement in the 2000 election demonstrates that Supreme Court intervention is not unprecedented.

A Supreme Court ruling is not designated as a part of the Constitutional process when it comes to selecting a president. The Supreme Court may become involved in resolving an electoral dispute if issues of federal law are raised by the way in which state courts handle their own involvement in these cases or if an electoral dispute is not resolved by the Constitutionally mandated deadline of January 20th. In 2000, the Supreme Court granted certiorari review over federal constitutional questions arising from how the Florida Supreme Court conducted itself on appeal from lawsuits filed initially in state court.

In Bush v. Gore, lawyers on the Republican side argued that the Florida State Supreme Court had overstepped the state legislature’s authority by ordering a recount. The U.S. Supreme Court ruled to stop the recount, but this ruling was based on a finding that different standards for vote-counting in different counties violated the equal protection clause.

Under 3 U.S.C. § 2, if a state holds an election for the purpose of choosing electors but fails to make a choice on the day prescribed, then electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct. The most important question to consider is whether state legislatures have uninhibited authority to appoint presidential electors after an election takes place.

The holding in Bush v. Gore offers that “[w]hen the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental and becomes subject to other constitutional protections, including equal protection and due process.”

It is these protections that may limit the ability of Republican-controlled state legislatures to prioritize their own preferences over the preferences of their constituents. Efforts of state legislatures aimed to subvert equal protection or due process may trigger the involvement of the Supreme Court in determining the outcome of this election.