Paul Hennessy/SOPA Images/Sipa USA via AP Images
President Trump on the campaign trail in Florida last week
Barely a day after the death of Justice Ruth Bader Ginsburg, Sen. Ted Cruz explained the stakes on Fox News: “I think we risk a constitutional crisis if we do not have a nine-justice Supreme Court, particularly when there’s such a risk of a contested litigation and a contested election … Twenty years ago, I was part of the legal team that litigated Bush v. Gore and went to the Supreme Court. Thirty-seven days, the country did not know who the president was going to be, and if we had a 4-4 Court it could have dragged on for weeks and months.”
Republican insistence that the nation needs a full nine justices really means the party needs that fifth vote. That message has been heard in the Republican Senate caucus. And the risk to the Court, and to the United States, could hardly be more stark.
So, what are the chances of a reprise of Bush v. Gore? Nobody at this point, no matter how well informed, really knows. The Supreme Court is already involved and there was always a chance that it would, one way or another, decide the 2020 election. Even before Justice Ginsburg died, teams of brilliant lawyers on both sides were filing motions in current cases and war-gaming contingent litigation.
The battle of 2020 is already on, in a series of pre-election lawsuits, many though not all of them inspired by the COVID-19 pandemic, over the conditions under which votes will be cast (or, as in the case of North Carolina, South Dakota, Wyoming, and Virginia, are already being cast), and how or indeed if they will be counted. History may record that these local lawsuits together formed 2020’s Bush v. Gore, and settled the matter before vote-counting began.
Beyond those, like W.H. Auden’s unscalable “Mountains of Instead,” looms the prospect of a post-election Court fight over a tipping-point state recount, or even over how the U.S. Senate counts electoral votes. If the nation starts up those mountains, it will very quickly reach an altitude where there is little air and no law at all—where, to paraphrase the late Roy Cohn, what matters is not what the law is but who the judge is.
Who can wonder that the Republican Party may be willing to use its bare knuckles to nail down that Supreme Court seat? There’s an election to be stolen.
BEGIN WITH THE ongoing battles over ballot access and voting. We have seen, for example, how the Wisconsin Supreme Court (elected by party) at first signaled its willingness to upend the process completely in order to require ballots to be reprinted with a third-party presidential candidate on them; the state was spared that chaos when one Republican justice voted with the three Democrats to reject that suit in order not “to interfere in an election that, for all intents and purposes, has already begun.” In Pennsylvania, the state supreme court recently ruled a third-party candidate off the ballot, allowed state election boards to put up drop boxes for ballots, and extended the counting deadline for ballot returns. The Trump campaign pursued a separate lawsuit in federal court seeking to block those measures and has asked the Supreme Court to block the state court decision.
You get the idea; I won’t go through a checklist of all the lawsuits pending. The Stanford-MIT Healthy Elections Project lists more than 300 cases in 44 states challenging election procedures on pandemic grounds alone (some have been concluded, but the vast majority are still open). Many others have been brought by state or national Democratic groups concerned about the ongoing attacks on voting by mail and the bizarre sabotage of the Postal Service by a postmaster general who is also a Trump donor and, maybe, already an election law violator. In addition are more particular challenges to local ballot access rules, mail balloting procedures, or polling place conduct.
Democratic-side victories in those district and state court cases could make it easier to vote; but federal appeals courts (on which one judge in four is now a Trump appointee) may reverse those victories, adding an extra layer of chaos to the mix. The Fifth Circuit (which recently upheld a Texas law discriminating by age in absentee balloting) and the 11th Circuit (which upheld Florida’s felon disfranchisement rule) and the Sixth (covering Michigan) and Seventh (covering Wisconsin) are pretty firmly Republican.
Donald Trump has already made clear what he expects after the election from the judges who, in his mind, work for him.
If one party loses in the court of appeals, it takes five votes on the Supreme Court to issue an emergency stay of a lower-court ruling. Even before Ginsburg’s death, the Court had already granted emergency stays in four cases where lower courts had made it easier to vote. The Court need not, and usually does not, explain an emergency stay, but it’s safe to conclude that five of the justices, very particularly including Chief Justice John Roberts, take a dim view of expanded voting rights. (In a fifth case, from Rhode Island, the state government itself was behind the proposed change, and the Court allowed that one to take effect.) Opposed to those five justices are the three remaining Democrats. Victories for Democrats below will be easily reversed by the five conservatives; Democrats would have to switch two votes to win stays of their losses. That’s, as Eliza Doolittle once said, not bloody likely.
So there’s a chance that Bush v. Gore has already happened, piecemeal and without explanation. And we aren’t at Election Day yet.
DONALD TRUMP HAS already made clear what he expects after the election from the judges who, in his mind, work for him. “Now we’re counting on the federal court system to make it so that we can actually have an evening where we know who wins. Not where the votes are going to be counted a week later or two weeks later,” he told a rally in North Carolina the day after Ginsburg’s death.
No federal court (not even the lawless Fifth Circuit) is really likely to say right out that votes can’t be counted after election night. That is a principle unknown to law, the Constitution, or common sense. What is more likely are local challenges to certain kinds of ballots in individual states—and here, conservative judges could boost Trump’s chances by, for example, barring the counting of votes received after a certain time or without certain kinds of envelopes or signatures. (The Supreme Court did exactly that in April, when it invented a state law “rule” that prevented Wisconsin from counting mail-in ballots from voters who received their ballots too late to get them in on time.)
Couple that with a few more alarming possibilities—that, for example, neofascists with assault rifles swarm the polls on Election Day (Trump protesters conducted a rehearsal for this on the second day of early voting in Virginia), or, for another, that Attorney General Barr “declares” a vote count tainted and sends in the FBI to seize or even destroy ballot boxes.
Bloodshed and bald-faced theft are not the only dangers. What if there is a hurricane in Florida on Election Day, or the electrical grid in Detroit mysteriously fails? Attempts to extend voting might be enjoined by Trump-leaning judges. Or, the day after chaos at the polls, a Republican legislature might convene in emergency session.
This brings us to the Electoral Count Act, a statute passed in 1887 to govern the way Congress counts electoral votes. It was inspired by the disastrous election of 1876, in which an “electoral commission,” including five Supreme Court justices, decided every contested state by a straight party-line vote, producing Republican candidate Rutherford B. Hayes as the winner by one electoral vote. The ECA was supposed to prevent a recurrence of such chaos. It won’t. In 2004, DePaul University law professor Stephen Siegel pronounced it self-contradictory—and others have been less generous, proclaiming it unconstitutional as well. Post-election litigation, especially after states have reported vote counts, may center on this deeply flawed statute.
Specifically, a legislature might decide that an election (even one that seemed to go fine) has “failed.” A section of the act provides that if a state has “failed to make a choice” of electors on Election Day, “the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct”; the term “failure” is not defined. In addition, the Constitution is not clear whether “direction” by the legislature requires an actual statute, or simply a vote of the two houses without a chance for a governor’s veto. In any case, a Republican governor might sign a bill appointing Republican electors, quite apart from the actual election result. (The Florida legislature was on the verge of doing this in 2000 when the Supreme Court majority spared them the effort.) A Democratic governor would surely refuse, and perhaps use his or her power (apparently recognized in the text of the ECA) to certify the Democratic electors instead. The dueling slates would then be forwarded to Congress for counting on January 6, 2021.
Post-election litigation, especially after states have reported vote counts, may center on the Electoral Count Act, a deeply flawed statute.
The Congress meeting to hear the count would be a new Congress, elected in November and seated on January 3; however, Trump and Pence, even if defeated at the polls, would remain in office until January 20. So the electoral votes would be opened and read by Vice President Mike Pence. If Pence tries to count the Republican slates and ignore competing Democratic slates, members of Congress can object—as long as the objection is signed by one member of each house. If an objection is lodged, the two houses meet separately. If both vote to accept one slate, then that slate is accepted. If not, then, says the act, they are to count the votes “certified by the Executive of the State.”
The governors of Arizona, Florida, and Texas are Republicans; the governors of Michigan, North Carolina, Pennsylvania, and Wisconsin are Democrats. Depending on the tipping-point state, different slates might have different executive endorsements. But the language is ambiguous, and if the two houses split, an emergency lawsuit in the D.C. district court would surely follow.
That lawsuit might make the case that the Electoral Count Act itself is unconstitutional. How can that be? Well, the act is a statute, passed by both houses and signed by President Grover Cleveland. Most statutes set out rules for the country or the executive branch to follow; but the ECA governs Congress’s own internal workings. There is, however, an ancient legislative principle that one Congress cannot bind another. Thus, the 49th Congress in 1887, in seeking to lay down internal rules for the 117th Congress in 2021, may have violated Article I § 5’s grant of power to each house to “determine the rules of its proceedings.” The losing party in any dueling-slate dispute might make that argument to the Court; the winning party, on the other hand, might argue that, by following the act, Congress had in fact “determined” its rules as the Constitution directs—that Court intervention itself, setting aside that procedural decision, would itself violate Article I § 5.
We have by now left the world of actual law far behind and find ourselves in a kind of surreal Krazy Kat landscape of political philosophy, judicial impulse, and raw power. And in this scenario, who the judges are—and whether there are eight or nine—may be the determining factor. If an eight-member Court is evenly split, a lower-court decision would stand. If not, Republicans win 5-3, and if a new justice is rammed through the Senate by Majority Leader Mitch McConnell, the count would be 6-3 for the Republican side of the case.
There’s a chance that Bush v. Gore has already happened, piecemeal and without explanation.
Or would it? The mind of Chief Justice John Roberts is a powerful but mysterious engine. I would never sit down at a poker table with this man. Roberts has the distinction of being the only chief justice in history to be publicly denounced by a sitting president. (Thomas Jefferson did not entirely hide his distaste for his cousin John Marshall, but he expressed it only in private letters and only after leaving office.) In November 2019, Trump denounced a district court judge as “an Obama judge,” and when Roberts indirectly rebuked him, tweeted back, “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges.’” Slightly more shocking, the same tweet ridiculed with scare quotes the very idea that the American judiciary is independent.
Inside Roberts’s buttoned-up soul, there must be a profound distaste for Trump personally, and perhaps alarm at the way he has, for four straight years, ostentatiously turned the Court into a partisan prize. What if Roberts knew he already had a conservative majority locked up—but also had a chance to rid the nation of Trump? Assuming Trump gets his 6-3 Court, Roberts is no longer the swing vote. But as leader of the conservative bloc, he might take one of the others with him. What if one of Trump’s own appointees sees the chance with one stunning gesture to lift the taint of Trump and McConnell from his or her tenure? If the Court’s role consists of piecemeal decisions, expect solid Republican victories. That’s far more likely than a case like Bush v. Gore, which everyone understood would, in and of itself, decide the winner.
But if a case like that comes along, then all bets—all of them—are off. Remember Justice Lewis F. Powell Jr., who wrote an opinion in 1972 denying his patron, Richard Nixon, a coveted power to wiretap political dissenters without a warrant. Powell had, before his appointment to the Court, loudly proclaimed that of course the president should have the power to order warrantless “national-security” wiretaps against domestic dissidents; but he wrote the opinion, for a unanimous court, disallowing the practice.
It was undoubtedly sincere. But it had another effect: No one ever called Lewis Powell a Nixon stooge.
