US Supreme Court, with Coney just in, may play key role in poll results

Speaking in September about appointing a new US Supreme Court justice, President Trump said it was important to have a full nine-person bench because the elections “will end up in the Supreme Court”.

Within weeks, he pushed through the nomination of Amy Coney Barrett. She assumed office on October 27 giving conservatives a super-majority of 6-3 on the bench. If the elections do not throw up a decisive outcome, it’s near-certain the judiciary will settle the matter.

Legal skirmishing has already begun. Because of the pandemic, a record 60 million plus postal ballots have been used. Knowing most of these are cast by pandemic-conscious Democrats, Trump has repeatedly insinuated they are susceptible to fraud. Pennsylvania, a key swing state, decided it would continue counting such ballots for three days after election day. Republicans immediately went to court.

The state courts declined to support them, so it was taken to the Supreme Court, which last week said it lacked the time to make a sensible assessment, but reserved the right to revisit the issue later. A legal powder keg for after the election is already set. Similar legal battles are taking place in other states.

The shadow of judicial involvement draws from the 2002 elections when a legal battle over 61,000 ballots rejected by Florida’s voting machines went to the Supreme Court. When the state supreme court agreed with Democratic candidate Al Gore these should also be counted, his opponent Republican George W Bush appealed to the Supreme Court.

The court, in two consecutive rulings, eventually rejected a recount because each Florida county had its own voting standards and there was not enough time for a more comprehensive recounting. Under the electoral college system, Bush was awarded all of Florida’s 25 electoral votes, pushing his total just over the 270 electoral votes required to become president.

Democrats claimed the court’s 5-4 conservative majority was biased. Subsequent recounts by media and non-governmental organisations showed Bush would have won using the ballot disqualification standards used at the county level, while Gore would have won if the state standards had been applied.

The Florida fiasco underlines how the US election system is run by a conglomeration of state and local government bodies rather than a single central entity as familiar to Indians.

The result is a patchwork of different rulebooks governing, for example, the workings of postal ballot, when a ballot is disqualified, and what a voter needs to do to be registered.

A remarkable example of how much discretion remains in the practice of US democracy is the case of the electors, appointed by state governments to cast the all-important electoral college votes. US presidents are voted indirectly through a system by which each state is apportioned a number of electors. Except for two states, each candidate who wins a state is awarded all the electoral votes of the college, no matter his margin of victory. While electors are expected to vote in favour of the candidate who won the elections, only 32 states mandate this by law.

The US has deeply-embedded electoral traditions and the political process has worked smoothly despite this rickety administration structure. Until now. Both parties have lined up lawyers by the hundreds in preparation for the battle after the ballot. Recognising Biden has a strong lead in national opinion polls, Republicans are using their control of the electoral machinery in some states to make it more difficult for likely Democratic voters.

More election-related lawsuits have been filed this year in the US than in the last two decades, says the Stanford-MIT Healthy Elections Project.

In half a dozen very tight state contests, a legal challenge is likely. These may end up in the Supreme Court, given the stakes involved. Think Florida 2002, multiplied by six. Only a fifth of Americans expect to know who will be the new president on or just after election day.