America braces for a supreme election meltdown in the courts

Flags draped at a Proud Boys rally to show support for US President Donald Trump in Portland, Oregon on September 26, 2020.
Flags draped at a Proud Boys rally to show support for US President Donald Trump in Portland, Oregon on September 26, 2020. © AFP - Maranie R. Staab

Twenty years after the Supreme Court effectively decided the 2000 US presidential election in a controversial partisan verdict, the spectre of the November 3 election ending up in the courts haunts Americans. Only this time, with the incumbent refusing to commit to a concession if he loses and conservative judges in a majority in the Supreme Court, things could get a lot uglier.


On a freezing December night nearly 20 years ago, journalists and news crews crammed into the pressroom of the Supreme Court as the clock ticked towards a midnight deadline, waiting for a verdict that would decide who would be the 43rd president of the United States of America.

At around 10pm local time on December 12, 2000, as journalists were worrying about being asphyxiated in the packed room, the verdict of the George W. Bush v. Albert Gore Jr. case finally fell.

By a tight 5-4 majority, the nine-member Supreme Court bench ruled that a recount of votes in the contested state of Florida must end.

The justices – including an octogenarian and two septuagenarians – had already left the building, and it was left to TV correspondents – braving the cold on the marble steps of the courthouse, to thumb through the 65-page ruling to deliver the verdict to the American people.

The verdict was split on ideological lines with five conservative judges halting the Florida vote recount, which was gradually giving Gore an edge over Bush in the knife-edge 2000 race. By narrowly outnumbering the four liberal justices who argued the recount should proceed, the conservatives had ruled in the Republican Bush’s favour.

“This ends the election,” ABC News commentator George Stephanopoulos concluded minutes after the verdict delivery. “Six hundred votes, approximately, separated Gore and Bush in the state of Florida and now, by one vote on the Supreme Court, this election is over.”

And with it, a sense of assurance among many Americans, that the country’s highest court would rise above partisan politics. In his dissenting opinion, liberal Supreme Court Justice John Paul Stevens did not mince his words. "Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law,” wrote Stevens.

The ruling had profound effects on the nation and its citizens, from “Bush v. Gore PTSD” – post-traumatic stress disorder – as a New York Times journalist recently dubbed it, to a flood of books, law reports and school programmes on the “Supremely Bad Decision”.

“This was a shattering 5-4 decision with transparent political polarisation leading to a tremendous drop in the public’s general understanding of the role of the Supreme Court and it opened the way to a kind of cynical manipulation of the [judicial] appointments,” said Bruce Ackerman, a constitutional law scholar at Yale Law School, in an interview with FRANCE 24. “For the legal academy, it was a shocker. From the vantage point of the political elites, it encouraged cynicism. From the vantage point of the general public, it encouraged alienation.”

On Saturday, when President Donald Trump picked Amy Coney Barrett as his nominee to replace the late Justice Ruth Bader Ginsburg on the Supreme Court, he revived a national trauma that Americans who lived through the 2000 election hoped never to experience again.

But Trump has directly tied the Supreme Court nomination to the upcoming November 3 presidential election. “I think it’s very important. I think this will end up in the Supreme Court and I think it’s very important that we have nine justices,” the US president told reporters days before officially nominating Barrett. “I think it’s better if you go before the election because I this...this...scam that the Democrats are pulling, it’s a scam. The scam will be before the United States Supreme Court.”

The “scam” appeared to be a reference to Trump’s repeated allegations of voter fraud and corruption in the upcoming election. Since the Covid-19 pandemic, Trump’s unsubstantiated accusations have focused on mail-in ballots since voters this year are more likely to use an electoral option long offered to most Americans without any controversy.

‘The most litigated election ever’

Trump’s consistent refusal to commit to a peaceful transfer of power, a bedrock of the democratic system, puts the US in dangerous terrain amid fears of violent, post-electoral discord and a constitutional crisis gripping the global superpower.

Weeks before the November 3 election, legal battles are already under way in what has been called “the most litigated election ever”. The Stanford-MIT Healthy Elections Project has tracked more than 300 litigation cases over access to vote issues, including absentee ballot services, extending voting hours, allowing citizens with criminal records to vote and providing free public transportation services to vulnerable groups.

A pattern has clearly emerged, with “Democrats trying to ensure more people are able to vote and Republicans that they don’t", explained Caroline Fredrickson, visiting professor at Georgetown Law, in a phone interview with FRANCE 24. “Unfortunately, the Republicans learned the lesson that it’s good to own the courts. Unfortunately, the Democrats didn’t realise the whole idea – although they now have, and there’s currently an enormous litigation effort. The Democrats are definitely working very hard, challenging every restriction Republicans are trying to put forward, and having a certain amount of success. But it’s like guerrilla warfare across the country, it’s just such a vast undertaking.”

Complicated systems, obsolete procedures, ‘originalists’ sticking to the text

The enormous legal challenge is further complicated by the convoluted US election system, administered by different state laws instead of a centralised election commission, and hampered by obsolete infrastructure and procedures.

This includes an anti-democratic electoral college system that is criticised every election season, particularly after the 2000 Bush-Gore election, when – for the first time in over a century – the winner, a Republican, won more electoral votes than the loser, a Democrat who actually won the election with more popular votes.

America’s failure to update its democratic system, set in the late 18th century – like France, which has had new constitutions and five republics since the French Revolution – is the subject of profound academic discourse.

>> Read more: Ginsburg’s death exposes frailty of US system

But upgrading the democratic bedrock of a conservative country that has deified its foundational narrative while overlooking historic wrongs – including slavery and terrors inflicted on native American tribes – is easier said than done.

There have been historic periods of reform, such as the era that Ackerman calls “the New Deal civil rights regime” beginning with Democratic President Franklin Roosevelt’s 1930s public works and recovery project. But that ended in the 1980s under the Ronald Reagan administration, according to Ackerman. “Reagan challenges this and there’s an increasing struggle over the vitality of the New Deal civil rights regime and climaxes with Trump,” he explained.

Barrett, Trump’s latest Supreme Court nominee, is a textbook conservative “textualist” and “originalist” – terms applied in the US for legal practitioners who strictly interpret the law and apply the Constitution as it was understood by those who drafted and ratified it more than 200 years ago.

While some conservative Supreme Court judges in the past have made progressive rulings, Fredrickson does not believe Barrett – who criticised a Supreme Court ruling upholding the constitutionality of a key provision of the Affordable Care Act (or “Obamacare”) – is one of them. “Donald Trump sees judicial appointments as another element in his re-election strategy. They’re not picking someone they have any doubts about, she will not deviate,” Fredrickson asserted.

‘Throwing away your umbrella’ as racism clouds hover

During her tenure at the Supreme Court, Ginsburg, who Barrett hopes to succeed, earned star status among liberals for some of her progressive dissenting opinions. In the landmark 2013 Shelby County v. Holder case, for instance, the Supreme Court’s conservatives by a 5-4 vote struck down a key part of the 1965 Voting Rights Act that blocked southern states from changing election procedures and rules if they discriminate against Black and Latino voters.

In her dissent, Ginsburg argued against scrapping the federal “preclearance” under the Voting Rights Act, which mandated that local authorities had to get federal clearance from the Justice Department in order to pass new election or voting laws. “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet,” she wrote.

Racism has hovered over the 2020 campaign like an ominous cloud in the wake of Black Lives Matter protests across the country following the death of George Floyd, a Black man who was asphyxiated after a white policeman pinned him to the ground with a knee to his neck for nearly eight minutes.

“It’s a huge issue,” said Fredrickson, referring to racism. “The Democrat base is a very diverse constituency including African Americans, Latinos, Asian Americans, whites, et cetera. So civil rights and voting rights have been essential for Democrats for quite some time. This year, because Donald Trump played the race card to such an extent, it’s an even bigger issue.”

Trump’s insistence on calling anti-racism protesters “rioters” and condemning the Black Lives Matter movement as a “symbol of hate” while defending the rights of armed white men who stormed the Michigan Capitol has raised alarm over what critics call the president’s unambiguous racist signaling.

“His interest in using the government to keep him in power and going to violent groups like white supremacist groups is very worrying and yes, that’s keeping lots of us awake at night, trying to figure if Americans are resilient enough to handle it. I think we could have civil war again. I don’t think the majority of the electorate will allow Donald Trump to steal an election,” said Fredrickson.

‘The greatest constitutional crisis in American history’

Trump’s repeated assertions that he will contest the November election if he loses has revived the spectre of a Bush v. Gore 2.0 fight in the Supreme Court. But two decades later, with conservative and progressive scholars agreeing on the very real threat of civil war, the stakes are a lot higher.

Ackerman hopes that US Chief Justice John Roberts – who he has known from their early days as law clerks to a circuit judge on the US court of appeals – will steer the Supreme Court from a Bush v. Gore repeat. “Chief Justice Roberts is profoundly concerned about maintaining the legitimacy of the court. Bush v. Gore for him was a profoundly disconcerting event, he does not want that to happen again. The Constitution and the statutes are clear: The Supreme Court has no role to play in the statutory or constitutional framework in determining the identity of the president of the United States,” he stressed.

But while Ackerman is hopeful, he, like the rest of America and the world, will have to wait until election day and monitor the transition period between the November 3, 2020 election and the January 20, 2021 presidential inauguration day. “We’re going to see if the US has learned the lessons of Bush v. Gore. This could be one of the greatest constitutional crises in American history. Only a fool would make a confident prediction.”


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