After the voting ends: “It ain’t over ’til it’s over”

“It’s déjà vu all over again,” said Yogi Berra, leading American philosopher and Hall of Fame baseball player.

The rushed appointment of Amy Coney Barrett to the U.S. Supreme Court shows that’s exactly what President Trump wants. In 2000, a partisan Supreme Court decided the election, picking Republican George W. Bush over Democrat Al Gore. Could it happen again?

In its 2000 decision, the Court implied that it would not routinely override state management of federal elections, as the Constitution provides.

That case involved constitutional violations in Florida’s ballot counting. Now the issue may be mail-in voting in many states. The Trump campaign must show more than the possibility that mail-in ballots permit fraud; it would have to show evidence of many actual cases of fraud.

In view of Bush v. Gore, most states have tightened their voting systems, making them less vulnerable to such complaints. This week, most justices said they would not displace state control, though Kavanaugh used Trump’s rhetoric against a lengthened count.

How could the post election play out?  Much depends on the exact outcome. If either candidate wins a landslide victory, there would be little incentive to challenge the results in multiple states.

Under the Constitution, the states run their own presidential elections. The first appeal from a state’s handling of the balloting would be to state election officials and state courts.

The U.S. Supreme Court would not be the court first used, because it must hear such cases on appeal. Bush v. Gore was decided on appeal from the Florida Supreme Court.

If no constitutional standard had been violated, the Supreme Court should not act as if it were a state court. Facing a dispute that could not be readily resolved, a state might struggle to choose its electors. That happened when the Court stepped or overstepped into the Florida case.

If the national result were nearly a tie, there might be challenges in several states not just one. The Trump campaign appears to believe that the outcome will be close, and it is prepared to challenge in a number of states. Presumably, the Biden campaign is also ready for a court war.

But courts need not determine the result. The Constitution contains rules for electing the president when neither ticket has the required 270 votes.

At noon on January 3, 2021, the new Congress is seated. At noon on January 20, the terms of Trump and Pence end. No exceptions are possible. The new Congress could try to adopt a law allowing for an acting president, but that’s highly unlikely.

The new House of Representatives would choose the president. After the 1824 and 1876 elections, the House fashioned political deals and elected the president.

In the House, each state has one vote. All 50 states are equal, and a state’s vote is determined by the state’s representatives, no matter how many or how few. Right now, there are more Republican than Democratic state delegations.

That may partly explain Trump’s focus on Maine’s Second District. If one representative were a Democrat and the other a Republican, the state would be deadlocked. Right now, both districts are represented by Democrats, which would yield a vote for Biden.

In 2000, the Court might have left the decision to the House (where Bush would have likely won), but it managed to find a constitutional question. What would happen now, if a partisan Court simply decided to substitute its judgment for the decisions of one or more states?

Its decision might be accepted by the loser, as Gore did. But, if there were a large popular majority nationally that the Court ignored, a crisis could result. Would the Court override a popular majority as it did in 2000? Maybe not, if it were big enough.

The House might ignore a Court ruling and proceed to its own vote if it produced a different result. President Andrew Jackson rejected a Supreme Court decision, stating it would not be enforced or obeyed. The Court’s decision, favorable to the Cherokee Indians, was ignored by the other two branches.

The House could have the last word. The Supreme Court would be damaged, and the country would be dangerously divided.

Though the three branches are supposedly equal, Congress can determine the Court’s jurisdiction. It could later strip the Court of the power to decide presidential elections. It could enlarge the Court to blunt the conservatives’ power. The justices will be aware of these possibilities.

The outcome may be uncertain unless the election produces a large majority for the winner, putting the result beyond debate. But the media might even find a way of projecting a winner right after the election.

Still, as Yogi famously said, “It ain’t over ’til it’s over.”

Gordon L. Weil

About Gordon L. Weil

Gordon L. Weil formerly wrote for the Washington Post and other newspapers, served on the U.S. Senate and EU staffs, headed Maine state agencies and was a Harpswell selectman.