“I easily WIN the Presidency of the United States with LEGAL VOTES CAST. The OBSERVERS were not allowed, in any way, shape, or form, to do their job and therefore, votes accepted during this period must be determined to be ILLEGAL VOTES. U.S. Supreme Court should decide!” President Trump tweeted at 1:22 a.m. today.
No Hope student is old enough to remember the 2000 election. For instance, I was only two years old, but it has become notorious for being one of the most contentious elections in American history. Unlike the 2016 election and the current tally of 2020 votes, the difference in the popular vote was around 500,000 votes in the 2000 election, instead of millions in 2016 and 2020. “Hanging Chads,” Florida, Pat Buchanan, butterfly ballots and Ralph Nader are all vestiges of the 2000 election. This election, America is dealing with COVID-19, mail-in ballots, social media, Kanye and a newly confirmed Supreme Court justice. What happened in Florida during the 2000 election is similar to what is happening right now in multiple states. Votes are being disputed, lawsuits are being filed and baseless claims of fraud are being thrown around by all sides. The last thing our country needs is for the winner of the election to be decided by the Supreme Court.
Due to COVID-19, the Supreme Court has already weighed in on a few issues regarding vote counting and voting rights during the pandemic. During the primaries in April, the Supreme Court extended deadlines in Wisconsin. Now the Supreme Court seems to have changed course in an even more conservative direction due to the death of Justice Ginsburg and the confirmation of Justice Barrett. Within the last month, the Supreme Court has ruled on lower federal court and state supreme court rulings regarding extensions over the counting of mail-in ballots. Some of these rulings have benefited Republicans, while other rulings favored Democrats.
One of the main reasons why President Trump and Senate Republicans pushed Justice Barrett’s nomination and confirmation through so quickly was in case the election headed to the Supreme Court. President Trump wanted to have a clear conservative majority. Many Democrats viewed this as politically motivated. In the eyes of Democrats, Republicans ignored COVID-19 and ignored passing macroeconomic relief in order to confirm Justice Barrett before the election. Therefore, Justice Barrett is viewed as tainted by politics, just like Justice Gorsuch and Justice Kavanaugh. Justice Gorsuch was able to be confirmed because Republicans left that seat open for many months. Majority Leader McConnell refused to give President Obama’s nominee Judge Garland a hearing. Justice Kavanaugh was confirmed in light of an accusation of a heinous sex crime. Now Justice Barrett was pushed through because President Trump viewed it as politically beneficial. Democrats are fairly asking, “How can these three justices be unbiased if the election goes to the Supreme Court?”
Justice Thomas and Justice Breyer are the only remaining members of the Supreme Court that decided Bush v. Gore (2000). Although only two justices from that Court remain, Chief Justice Roberts, Justice Kavanaugh and Justice Barrett worked on the Bush campaign’s legal team to stop the recount in Florida. Now those justices who worked for the Bush campaign might be asked to rule on a similar case or cases. In an age when the American populace is viewing the Court as more political than ever, the Supreme Court may have to decide the winner of this election. A 6-3 decision with all of the Republican appointees siding with President Trump will be rejected and deemed as political by Democrats and independents. If Chief Justice Roberts, trying to save the institutional reputation of the Court, sides with the liberal bloc, the decision would still be 5-4 in favor of President Trump.
Ideally, the electoral process alone would determine the winner of the election. That is what has happened nearly every American presidential election. Since that is unlikely to occur this time, the only optimal outcome is a unified Supreme Court issuing a decision signed onto by at least 7 of the 9 justices. Unfortunately, that is unlikely to occur, and the Supreme Court will be further viewed as a political, extralegal institution.
Patrick Johnson is the president of Hope College’s Pre-Law Society.