Among the many strange and worrying truths about American elections, one has a tendency to get lost: The path to the presidency can run not just through battleground states but also through the Supreme Court.
Back in 2000, it was the Supreme Court in Bush v. Gore that put an end to a month-long post-election battle between the Democrat Al Gore and the Republican George W. Bush over who would be awarded the state of Florida’s Electoral College votes and, in turn, the presidency. This time, were the outcome of the 2020 election to fall to the Court, the situation could be far messier, and at stake would be the legitimacy of both the Court and the entire American electoral process….
Aside from these general rulings, the Supreme Court and lower courts have become more and more involved in disputes over election procedures, balloting, and vote counting. According to statistics I compiled for my new book, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy, the amount of election-related litigation keeps rising, and is now at nearly triple the rate of litigation in the period before the 2000 election. The 2018 election saw the largest number of election-related cases since at least 1996 (the first year for which I have been keeping records), which is all the more shocking given that litigation rates in midterm-election years tend to be lower than in presidential-election years. With Democrats bringing ever more lawsuits challenging restrictive voting practices put in place by Republican legislatures and elected officials, there’s every reason to believe that another record will be set in 2020, and that the most important of these cases will end up before the Supreme Court.
No one knows which cases will make it to the Court during the 2020 election season, but based on its generally conservative track record of late, it is a good bet that the Court will allow all but the most egregious efforts at voter suppression to go through. A recent example involved a law in North Dakota requiring voters to produce identification with a residence address on it, which uniquely burdened Native Americans living on reservations. In 2018, the Court refused to block this law, despite a total lack of evidence that the state had a good reason to impose it. That same year, the Court gave a green light to Ohio’s tough voter-purge practices. In addition, the Court’s conservative majority has been cutting back on protections of the Voting Rights Act for the last decade, most significantly when it killed off a key provision of the act in the 2013 Shelby County v. Holder case.
Most of these disputes over voting rules and elections, and Bush v. Gore itself, featured a Supreme Court divided 5–4 between the Court’s conservatives and liberals, with the conservatives coming out on top. When angry Democrats confronted the late Justice Antonin Scalia about the Court handing the 43rd presidency to Bush, Scalia told them to “get over it.” For the most part, people did get over it, with the Court’s legitimacy not taking a serious hit after the case.
But increased polarization and other changes since 2000 have altered the landscape, and it is not clear that things will go as smoothly for the Supreme Court or the nation if the Court ends up in the position of determining the outcome of a presidential election again.