While it still may take some time to get the 2020 US presidential election results, Donald Trump has made clear that he will contest the outcome. We take a look at the possible scenario in which this goes all the way up to the Supreme Court of the United States.
Due to the widespread prevalence of mail-in ballots this year, in an effort to curtail the spread of COVID-19 in the United States, the votes are still being counted and what is usually Election Day in America has turned into Election Week. However, as things stand, Democratic candidate and former Vice President, Joe Biden has a clear lead in the race, having flipped Michigan and Wisconsin yesterday.
Biden is leading the race for 270 electoral college votes with 253 electoral votes (50.4%) to Trump’s 214 (47.9%) with just 71 votes still up for contention. However, having appointed three of the nine justices on the Supreme Court, personally, Trump has the judicial apparatus on his side. He appointed Justice Amy Coney Barrett into Ruth Bader Ginsburg’s vacated seat just a week before the election to give the Supreme Court a 6-3 conservative majority.
This means, in theory, that Trump would be able to cast doubt over the legitimacy of the election or the way that votes are cast – by suggesting that there is widespread voter fraud, for example – and call upon the highest court in the land to overturn the results of the election. I could only describe this as a modern day Reichstag fire. With Trump’s incredible cult of personality and the sheer divisiveness of US politics over the last four years, it would come as no surprise that he may be the man to bring the United States’ centuries old democracy to its knees. The question though, is how will it move through the courts circuit? Which cases do you need to pay attention to?
The obvious answer, with the electoral college having such a massive affect on the US political system, is to look at key battleground states. An article from the New York Times makes the case that, as most of us could have predicted, Pennsylvania will be the centre of our attention.
“While there have been countless election cases filed around the nation, it is not clear which of them might reach the Supreme Court in the coming days,” writes
“But one candidate is already on the docket, and on Wednesday that Trump campaign said that it was intervening in the case, from Pennsylvania, which challenges a ruling by the state’s highest court that extended the deadline for receiving mail ballots by three days.”
Late arriving mail-in ballots in Pennsylvania have the potential to swing the state in Biden’s direction (with the majority of Democrat voters preferring to vote by mail while Republican voters downplay the seriousness of COVID-19 and are willing to stand in line for hours and be at risk of contracting the virus). However, Trump himself has already called for election officials to stop counting the votes, which would effectively hand him the state and potentially the election.
And if late arriving ballots do have the power to swing Pennsylvania, the Supreme Court could intercede.
In late October, the Supreme Court justices dismissed pleas from Republicans to fast-track a decision on whether the Pennsylvania Supreme Court had acted lawfully when it ordered a three-day extension for ballots clearly mailed on or before Election Day, and for ballots with missing or illegible postmarks “unless a preponderance of the evidence demonstrates that it was mailed after Election Day.”
The justices refusal came after an emergency application made on 19 October resulted in a 4-4 deadlock (with the court still made up of only eight members at the time because Amy Coney Barrett had not yet been confirmed).
“Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh said they would have granted a stay blocking the Pennsylvania Supreme Court’s decision,” writes Liptak. “On the other side were Chief Justice John G. Roberts Jr. and the court’s three-member liberal wing: Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
“Justice Amy Coney Barrett, who joined the court on Oct. 27, did not take part in the decision not to fast-track the case.”
Justice Alito argued that the decision “needlessly created conditions that could lead to serious post-election problems.”
“It would be highly desirable to issue a ruling on the constitutionality of the State Supreme Court’s decision before the election,” Justice Alito wrote. “That question has national importance, and there is a strong likelihood that the State Supreme Court decision violates the federal Constitution.”
Alito has made clear where he stands on the issue and a clear line has been drawn by all of the Supreme Court Justices, with the exception of Justice Amy Coney Barrett, who’s confirmation President Trump and Senate Republicans so desperately fast-tracked in order to have her in the role before the elections took place. The direction that she would take in the decision that will be so critical for the survival of American democracy, seems obvious.
The question, in the end, will be whether people are paying attention to this race and what’s happening between the lines – what has been happening for months now. And will America, from the left and the right, allow a man with clear dictatorial tendencies to undermine the separation of powers that have protected American democracy for all this time?
Calling Trump a dictator, calling him a fascist, has always come across as hyperbolic and a politically charged statement. However, if Trump attempts to overturn the result of a democratic election through the Supreme Court, as he has indicated he intends to, how else would you describe his politics?