The Ghost of Bush v. Gore
Bush v. Gore was a famously questionable Supreme Court decision which decided the 2000 Presidential Election. It could decide the 2020 Presidential Election, too. Source.
With the 2020 Presidential election finally here, anxiety levels amongst many Americans are sky-high. This last term has been one of the most tumultuous presidencies in recent history. President Trump has made one controversial comment after another, been impeached, and led a pandemic response that’s resulted in over 200K Americans dead. Democrats are hoping that Tuesday will bring a decisive and overwhelming victory for Joe Biden, and it might. However, there’s still one major fear - a ghost of elections past - that’s still being floated in Democratic circles: that President Trump will do everything in his power to steal the election.
Democrats and election experts have, for the past few months, been running through a variety of scenarios in which the Republican party, and Trump, attempt to undermine election results and secure a victory for Trump even if there’s no decisive winner. They’ve done so because Trump refuses to say whether or not he will accept the results of the election. Many scenarios involve Trump declaring victory on Twitter, the election getting tossed to Congress, or even violence. Republicans though, who have always been able to strategically bend existing institutions to their will, are likely angling towards a different strategy. Instead of a messy declaration of victory, Republicans likely planning that the election results will be contested and sent to the Supreme Court, in the same style as the infamous Bush v. Gore case.
In the 2000 Presidential election, the results of the Presidential race came down to a few hundred contested votes in Florida. The Republican and Democratic Parties were launched into a difficult recount battle, with the issue eventually making its way to the U.S. Supreme Court. The Court ruled that the state of Florida could not proceed with a vote recount essentially handing the election victory to President Bush. In the time since, Bush v. Gore, while maybe initially being viewed as a one time decision, has been cited in hundreds of cases, some of which have resulted in the disqualification of ballots. Republicans are hoping they’ll be able to use these rulings to their advantage this week.
Just last week, the Republican-held Senate rushed through the nomination of Amy Coney Barrett to ensure that there would be a conservative majority on the Supreme Court in time for election day, in fact, Trump said explicitly that he appointed her with the hopes that she would throw any contested results his way. There’s no need to wait and see how this new court will decide election results though, we already have an idea. The GOP of several states have already sued to make it harder for states to count and include absentee ballots received after election day. Trump himself has begun to cast doubts on the validity of these ballots, and, perhaps more importantly, so has the Supreme Court. Last week the Supreme Court threw out a rule that would allow ballots in Wisconsin to continue to be counted after election day. Supreme Court Justice Brett Kavanaugh cited Bush v. Gore as basis for that decision. Even more damning is the fact that three conservative judges on the court, Justices Roberts, Kavanaugh, and Barrett, all helped Republicans in their 2000 recount battle. While some might argue that the courts are still non-partisan, and that this doesn’t mean anything, history proves otherwise. The idea that the Supreme Court is a non-partisan institution, and that Justices do not have allegiances to any party was thrown out the window with Bush v. Gore, and has only worsened since.
Any hopes that the existing court might not rule in Trump’s favor, or go the way of Bush v. Gore, have become slimmer with the confirmation of Justice Barrett and the Court’s recent voting decisions. Unless Biden has a victory so overwhelming it is impossible to dispute, it’s become clear that should the election be close, Republicans plan to dispute the results, and that the Supreme Court will be on their side.