If US vote is dead heat, how will the courts decide? – analysis
Absent a landslide for Democratic presidential nominee Joe Biden, the US Supreme Court may once again decide or decisively tilt the election outcome.
By YONAH JEREMY BOBAn American flag sign is seen on a voting booth at Madison Square Garden, which is used as a polling station on the first day of early voting in Manhattan, New York, U.S. October 24, 2020.(photo credit: REUTERS/JEENAH MOON)
People may recall the US Supreme Court decision Bush vs Gore, which handed the presidency to George W. Bush in 2000.Absent a landslide for Democratic presidential nominee Joe Biden (predictions are either a close race or a Biden landslide), the US Supreme Court may once again decide or decisively tilt the election outcome.Basically, in any scenario but a landslide, US President Donald Trump and Biden are expected to go to court to litigate the results of a number of swing states, which could include Pennsylvania, Florida, Wisconsin, Texas, North Carolina and others.The kinds of issues that could go to the courts are numerous and could influence whether the issue goes to the US Supreme Court and how it might rule.In 2000, the question was whether to allow a statewide recount in Florida when Bush won based on counted votes, but Democratic candidate Al Gore said a decisive number of votes were improperly disqualified.In fact, there was significant evidence that a recount could have led to a Gore victory, and the Florida Supreme Court had ordered a recount.Ultimately, it took almost six weeks for the US Supreme Court to resolve the issue based on concerns that uniform standards could not be applied for a recount and finality (and, of course, Republican appointees had a 5-4 majority).Those same issues could be in dispute again, but there are many additional issues.Trump has targeted opposing a variety of different kinds of mail-in voting, which for this pandemic era means a significant majority of the votes.More specifically, he will try to block the counting of mail-in votes in swing states that were not counted by Election Day.
In some states, earlier postdated mail-in votes were counted before Election Day, and so the litigation will be limited to counting mail-in votes that arrived later and have not yet been counted.Yet, in other states, mail-in votes are not allowed to be counted until after in-person votes are counted.Some states have laws specifically allowing counting votes postmarked or received within a short time after Election Day, and some demand votes be received by Election Day.As counting continues past Election Day, Trump would likely raise new allegations of a variety of voting improprieties, and Biden may raise new allegations of voter intimidation, improper disqualifications and possibly even intentional postal delays.The US Supreme Court already ruled for Republicans in pre-election litigation in Wisconsin and for Democrats in Pennsylvania.Basically, US Chief Justice John Roberts swung the vote based on respecting whatever the default was under state law and rejecting any attempt at interpreting that law by lower courts or other parties.But some of these cases could return to the US Supreme Court, and then the result may change since Amy Coney Barrett may decide to vote on post-election cases.Curiously, she never committed to the US Senate whether she would vote on election-related cases or recuse herself since she was confirmed by Trump so close to Election Day.However, to date, she has declined to join in on the pre-election decisions.No one knows if she will join in on post-election decisions, potentially swinging close calls in favor of Trump.But if a state or federal court gets involved in any of the disputed issues in a way that implicates larger constitutional issues, the US Supreme Court could definitely intervene.That said, it is also possible that the US Congress could decide the election.In 2000, Republicans controlled both houses and were satisfied to allow the majority-Republican US Supreme Court to decide the race.However, the US Congress has a final role in tabulating and ratifying the votes of electors from each state as part of the Electoral College, which actually decides the presidency.There are swing states where the state legislature and state governor are divided between Democrats and Republicans, and each side could try to replace the original slate of electors.Ultimately, the US Congress could potentially decide which electors to accept in such a disputed situation and could do so despite the US Supreme Court.If Democrats take control of both houses of Congress, they could potentially sway the election in favor of Biden between January 3 and January 20.There are also a variety of hybrid scenarios of involvement of courts, state legislatures and Congress.The only thing for sure is that absent a landslide, everyone will need to fasten their seatbelt for a roller-coaster ride that could play out into December and even January.
