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Monday, November 30, 2020

The bumpy road to 270

If the 2020 US elections reaches the Supreme Court, the court should not be directed by haste but by prudence

Updated: November 6, 2020 10:31:18 pm
Despite Trump’s unrelenting efforts to reverse the election results, the Biden campaign is still attempting to forge ahead with the presidential transition. (AP photo)

Written by Raunaq Jaiswal

It is the 20th year since the United States Supreme Court’s decision on Bush v Gore was delivered. The current presidential elections, potentially, offers the US Supreme Court an opportunity to rewrite the contours of the political questions doctrine. The controversy in question here occurred early on Wednesday, November 4, 2020, when President Donald Trump, speaking from the White House, unilaterally declared himself victorious in the contest, and demanded that the counting of all the ballots be halted. We can assume that the ballot he referred to here are absentee ballots.

Further, Trump suggested that he will approach the US Supreme Court to stop the counting of votes. Interestingly, while the counting of the ballots in the US usually stops after a winner has been declared, in this particular election, the counting of votes is still underway and a winner is far from decided. While the US Supreme Court has never delivered a judgement directing that counting of votes be halted in the first place, in 2000, they did prohibit the recounting of the ballots in the state of Florida during the presidential election.

In the presidential election in 1999, Vice President Al Gore had out-polled Governor George Bush in the popular votes nationally, however, Bush bagged 271 electoral college votes to his opponents 266. In the key state of Florida, an automatic machine recount was mandated by the law since the margin of victory was less than one per cent of the total vote. When the recount also favoured Bush, Gore demanded a hand recount. The hand recount highlighted some irregularities with the ballot system, but more importantly, indicated that Gore was indeed the winner in Florida. This, by extension, should have made him the President elect, had a state-wide recount been allowed to take place by the US Supreme Court. The irregularities on the other hand lead to a challenge before the Supreme Court of Florida, which decided partially in favour of Gore. Bush appealed and the US Supreme Court granted the writ of certiorari.

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Interestingly, the US Supreme Court framed the question for their consideration on the basis of whether a recount of votes violates the equal protection clause of the Constitution. In framing the question in this language, the judges of the Court are deliberately side-stepping the questions posed by the political question doctrine. In their 7-2 finding of violation of the equal protection clause, the Court held that “recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work…[which] would require not only the adoption…of adequate state-wide standards for determining what is a legal vote, and practicable procedures to implement them, but also orderly judicial review of any disputed matters that might arise.” To put this point a little differently, the US Supreme Court did not permit the recount simply because they were of the opinion that the State of Florida did not have in place either adequate mechanisms to count the disputed votes besides also lacking judicial mechanisms to review disputes.

It seems inevitable that President Trump will approach the United States Supreme Court if the outcome of the election does not suit him. It is also fairly predictable that the battleground he will pick will be of mail-in or absentee ballots, as he has previously gone on record claiming that such ballots were manipulating the outcome of the election. The first thing that would be interesting to see in the coming days would be how the Court, when the matter is in front of them, adjudicates on the issue. Would they create an exception in their traditional procedures and permit themselves an indulgence of exercising original jurisdiction over the matter, and thereby, breaking away from their well-settled practice.

The second thing of consequence, if the case appears before the US Supreme Court, would be how the Court frames the question this time around. The potential ruling of the Supreme Court will be closely watched because if they decide to hear the matter on merits, it will create a new distinction in their own “political questions” doctrine. In Baker v Carr, the Court explicitly observed the prudence to avoid all considerations which would inadvertently drag the judges into highly controversial considerations, and calculations connoting a direct political and partisan impact.

When the matter in Bush v Gore was heard, the Court made the matter admissible on the ground of equal protection of laws, noting that it involved a matter of denial of important constitutional right, namely, the right to vote, rather than dismissing it on the basis of the political questions doctrine. Despite the ingenuity with which the Supreme Court had admitted the matter previously, it could not be denied that the Court did enter into the “political thicket”. The sharply divided decision, however, ensured that President Bush became the first US President to be a President selected by the judiciary rather than by the voters.

The third thing that would be of considerable interest will be how the Court considers the validity of the absentee ballots as legal votes. It is fairly obvious that this issue will be hotly contested primarily on the basis of the absence of judicial review of disputed matters in some states. As President Trump challenges the legality and genuineness of the absentee ballots, there are still no judicial mechanisms to review the disputes in case the veracity of the ballots is called in question. What does exist however is a mechanism to review whether the signatures provided match from the official records, and a paper record to indicate whether the voter in question has concurrently voted elsewhere or not.

Due to the complications created by the COVID-19 pandemic, the outcomes have been delayed, since the process entails not only counting of votes received by the machine, but also counting of votes received by post. If it is challenged in court, like it recently happened in Republican Party v. Kathy Boockvar, the courts should not be directed by measures of haste, as advocated by President Trump, but by prudence. The majority and dissenting views in Bush v. Gore cautioned against a hasty decision in matters concerning democracy, though for different reasons. The majority said so since they felt it violated the equal protection clause, and the dissenters because they thought it could lead to disenfranchisement. President Trump’s efforts to declare victory in the elections unilaterally cut across both — it violates equal protection to be accorded to absentee ballots, as well as disenfranchisement if his efforts bear fruit.

The writer teaches at OP Jindal Global University

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