The potential role of the Supreme Court in the upcoming presidential election is getting extra scrutiny after President Donald Trump prematurely called victory on Nov. 3 before all ballots were counted — and subsequently said he'd be taking the matter to the highest court in the land. In light of the Tuesday, Oct. 27 swearing in of new Supreme Court Justice Amy Coney Barrett, you might be wondering if the Supreme Court can decide an election. Here's how the conservative-majority Supreme Court could potentially get involved.
Ahead of the confirmation of Justice Barrett by a 48-51 vote in the Senate just a week before Election Day, President Trump sparked controversy when he told reporters that the Supreme Court could again decide the results of the election. “I think [the election] will end up in the Supreme Court, and I think it’s very important that we have nine justices," Trump told reporters on Sept. 23. President Trump has repeatedly made unverified claims that the election would be a "hoax" due to the high number of mailed-in ballots, but there is no evidence that mail-in voting leads to voter fraud. He again made his plans to go to the Supreme Court apparent in his election night speech on Nov. 3, saying:
We were getting ready to win this election. Frankly, we did win this election. We did win this. So our goal now is to ensure the integrity for the good of this nation. This is a very big moment. This is a major fraud on our nation. We want the law to be used in a proper manner. So we’ll be going to the U.S. Supreme Court. We want all voting to stop. We don’t want them to find any ballots at 4 o’clock in the morning and add them to the list. OK? It’s a very sad, it’s a very sad moment ... We will win this, and as far as I’m concerned, we already have won.
It should be noted that as of 9:25 a.m. ET, despite President Trump's claims of a victory, no major news organizations have declared a winner in the presidential election. It's also unclear which states Trump was referring to in his remarks about going to the Supreme Court about at this time. Elite Daily reached out to the White House for comment and clarification on his speech, but did not hear back by the time of publication.
In response to the president apparently calling for mailed-in votes to not be counted, Biden campaign manager Jen O’Malley Dillon said on Nov. 4, "The president’s statement tonight about trying to shut down the counting of duly cast ballots was outrageous, unprecedented, and incorrect." She added, "The counting will not stop. It will continue until every duly cast vote is counted. Because that is what our laws — the laws that protect every Americans' constitutional right to vote — require."
Nevertheless, lawsuits about mail-in ballot deadlines in Pennsylvania and North Carolina hint that the Supreme Court may need to intervene when it comes to whether or not ballots are counted if they arrive after Election Day. This is especially of concern since the results of the race were not called on election night. As expected, President Trump has prematurely declared victory, and is trying to stop the counting of ballots after Election Day. Despite Trump's claims, it's common practice for every state to keep counting ballots after Election Day, and states are under no legal obligation to share voting results by that time, according to The New York Times. Instead, the projected winner is reported by media outlets based on partial counts, not the states themselves. Again, as of 9:25 a.m. ET on Wednesday, Nov. 4, no winner has been announced or projected by any network.
The Supreme Court has only intervened in a presidential election two times in the past — and only once in modern history. Five justices originally decided the 1876 race between Rutherford B. Hayes and Samuel Tilden in favor of Hayes. The only instance of Supreme Court intervention in an election in modern history was 20 years ago, when the Supreme Court decided the 2000 election in favor of then-Republican nominee George W. Bush. After the Florida Supreme Court ruled in favor of recounting votes, the Supreme Court stepped in and ruled 7-2 to halt the vote recount in Florida. Bush went on to win Florida by a mere 537 votes, and thus the election, by just five electoral college votes.
With concerns that Barrett could be the deciding factor in a Supreme Court case on the election results, the new justice dodged answering when asked if she'd recuse herself from a hypothetical case.
"I commit to you to fully and faithfully applying the law of recusal, and part of the law is to consider any appearance questions," she said. "And I will apply the factors that other justices have before me in determining whether the circumstances require my recusal or not. But I can’t offer a legal conclusion right now about the outcome of the decision I would reach."
In a Nov. 4 statement, O’Malley Dillon said the Biden campaign is prepared for President Trump to seek legal avenues to stop the counting of ballots. "If the president makes good on his threat to go to court to try to prevent the proper tabulation of votes, we have legal teams standing by ready to deploy to resist that effort," he said. "And they will prevail."
Only time will tell how the Supreme Court will rule if the case winds up before them. Just weeks before the election, the U.S. Supreme Court declined to take on one of the most high-profile pre-race cases in Pennsylvania, thus allowing election officials in Pennsylvania to be able to count absentee ballots received as late as the Friday after Election Day, as long as they were postmarked by Nov. 3.
At the time, conservative judges Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas said they would have ruled against the extension while Chief Justice John Roberts said he would have joined the three liberal judges, making it a 4 to 4 tie. With newly-appointed conservative Justice Barrett now on the court, that ruling could change if the Supreme Court was faced with a similar case.