October 27, 2020; Roll Call
Election Day is near, and with Amy Coney Barrett recently added to the US Supreme Court, much of the media focus has been on whether the nation might see a replay of Bush v. Gore. That could happen, but the odds are small.
If you’re a gambler, the election lawyer who led the George W. Bush campaign’s legal strategy during the Florida recount in 2000, Ben Ginsberg, puts the “chances of that happening at about 5.2 percent.” That’s not zero, but it is fairly low.
Meanwhile, the odds of legal challenges are higher at the state level, as Ginsburg points out: “It is one thing to talk in broad generalities about an election being fraudulent or rigged, and very different to be able to actually bring that case in a granular precinct-by-precinct, state-by-state way.”
Vanita Gupta, CEO of the Leadership Conference on Civil and Human Rights offers a similar analysis: “There will be a lot of litigation, but most of it around the counting of ballots likely will not be going to the United States Supreme Court,” said Gupta during a briefing held by the National Task Force on Election Crises. Gupta previously ran the Justice Department’s civil rights division during the Obama administration.
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There are, of course, many places where things can go awry in the arcane US presidential system. It is worth recalling that we’re the only country in the world with presidential elections that uses an electoral college, rather than having the president elected directly by popular vote. All of the gaming you read about in the press these days, such as rival slates of electors (something that actually occurred in the 1876 US election) would be impossible to contemplate but for the electoral college.
The US is also the only country where it is conceivable that a candidate could win the election without winning the popular vote, as we know all too well by now. On January 6th, 2021, Congress will tally the votes of the electoral college, and technically it is only after Congress certifies the results that the election is officially over. While it has never happened, might disputes spill over January 6th? And could the Court get involved then?
“It is neither inconceivable nor certain that the federal courts, up to and including the Supreme Court, would have their jurisdiction invoked to resolve a dispute like that,” Adav Noti of the Campaign Legal Center says. “The devil would be in the details.”
What are concerned people in civil society to do? Certainly, there may be a need to mobilize. It is also important to support the local officials who carry out the work to ensure fair counts across the land. This site from the nonprofit Brennan Center for Justice provides a calm and measured overview of state laws regarding how the election certification process occurs. Also, published by the Brennan Center is an article by Elizabeth Howard that lifts up the hard work done by tens of thousands of local election officials.
Howard, a former state election official herself, writes, “The highly decentralized nature of our election system creates a patchwork of approximately 10,000 jurisdictions at the county or municipal level. At the heart of every one are local election officials, and in many ways they are the unsung heroes of our democracy.”—Carole Levine and Steve Dubb