2020 and the shadow of Bush v. Gore

Ever since my colleague, Damon Linker, wrote his column about the possibility of a "2000 election on steroids," I've been brooding about that scenario. While a clear victory by either Biden or Trump could still be followed by claims of widespread fraud or voter suppression, if the waters are sufficiently muddied before the count is complete such that no one can really say with confidence who won, the prospect of radical destabilization, and even the collapse of our system of government, becomes far more imaginable.

That's not what happened in 2000, of course. Instead, the Supreme Court stepped in to halt the increasingly fraught and acrimonious recount process, effectively awarding the presidency to George W. Bush. After the decision, Gore promptly conceded, and the election was over.

In 2000, the Court's decision probably didn't change the result. A complete recount of the ballots in question would likely still have resulted in a Bush victory, and if Florida had proved unable to resolve its slate of electors in time for the Electoral College to meet, then a deadlock would have thrown the election to the House of Representatives, which would have also awarded Bush the presidency. But while accepted as a practical matter, it was deeply resented by Democrats nonetheless, and it discredited the Court in the eyes of many observers as tainted by political partisanship.

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Could it happen again? In a close enough election, it certainly could. There's already a lawsuit pending in which Pennsylvania Republicans are asking the Court to overrule Pennsylvania's State Supreme Court ruling that ballots received after Election Day should be counted if postmarked before Election Day, or if they lack a postmark but the "preponderance of evidence" suggests they were mailed in time. There could easily be other disputes that emerge if states like North Carolina, Florida, Wisconsin, or Arizona prove close and potentially decisive.

What would the Court do if faced with such an awesome responsibility for a second time? We shouldn't presume we know.

On the one hand, the Roberts Court has hardly been a champion of voting rights, and has been deferential to the power of state legislatures, most notably in Shelby v. Holder which struck down a key part of the Voting Rights Act and in Rucho v. Common Cause, which upheld partisan gerrymandering. So a story in which the Court acts to uphold the letter of the law in cases where its spirit is plainly being violated — and where millions of voters are potentially disenfranchised — isn't hard to spin.

On the other hand, this Court has also been extremely cautious about not jeopardizing its own legitimacy by intruding overmuch in the political sphere. Indeed, the gerrymandering case can be defended on precisely those terms, and while striking down the Voting Rights Act provisions was an act in blatant disregard of the power and intent of Congress, it substantively removed judges from involvement in supervising elections, and was arguably therefore a retreat from judicial involvement in elections. Most recently, the Court's stay cutting off extended absentee voting in the Wisconsin primary was strikingly defensive in tone, taking unusual pains to argue that it was not establishing a wider precedent but only acting to prevent sudden, last-minute changes to an election already underway ordered by a lower court in defiance of the legislature's own decisions. Considering the powerful arguments that Bush v. Gore was itself not truly justiciable — arguments very similar to positions that the Roberts Court has taken in other contexts — it's entirely possible to imagine the Court punting altogether rather than grasping the nettle.

This, however, would simply kick the chaos back down to the various states, where state legislatures, governors and state supreme courts might wind up going to war with each other in ways that have a consistently partisan tinge. Chaos would only serve the interest of those eager to discredit the election, and could ultimately toss the result to the House of Representatives where the GOP, even though in the minority, still controls the majority of state delegations, each of which would get a single vote in breaking an Electoral College deadlock. Ironically, this time it might be liberals and Democrats who want the Supreme Court to weigh in, particularly if similar conflicts over counting absentee ballots crop up in multiple states. If faced with the question, the Supreme Court might still conceivably be the only body able to lay down a set of principles that both sides could agree is not transparently one-sided or arbitrary.

So it's worth asking what those principles might be — and the Democrats have an opportunity to do just that in the hearings for Amy Coney Barrett's confirmation. Right now, many Democratic leaders are planning to boycott the hearings on the grounds that they legitimize an outrageous abuse of power by the Senate Republicans. But if an abuse of power occurred, it was in 2016 when Merrick Garland was denied a hearing under similar circumstances, and if the Democrats want to make a political case of it — and they absolutely should — that case needs to be made in Senate races across the country, not in the hearing room. While it's undoubtedly a waste of time to grill Barrett about abortion — and it would be atrocious if they engaged in character assassination or countenanced religious bigotry — there are actually other topics worth grilling Barrett about, and none more pressing than the role of the Court in an election dispute.

Does Barrett think Bush v. Gore was decided correctly, or should have been heard at all? I'd very much like to know. Does she think judges have a role to play in making sure that an election is fair, or is their job to construe the letter of the law as narrowly as possible regardless of circumstances? While a narrow construction may seem conservative and restrained on the Court's part, if it results in the invalidation of many votes that there is no credible reason to believe are fraudulent, it could deal a material blow to the legitimacy of the outcome, precisely the result that restraint would ostensibly be intended to prevent.

That is the largest question looming in the background: What does Barrett see as the basis for political legitimacy in our system of government? Why should anyone listen to the Court when it speaks, or respect the legislature when it passes laws? The constitution guarantees to each state a republican form of government, meaning that power vested in all branches, legislative, executive and judicial, is ultimately derived from the people. Congress has the power to enforce that requirement through legislation like the Voting Rights Act provisions that Justice Roberts disparaged. If the proper role of the courts is to defer to the political branches when they are exercising powers granted to them by the constitution, and not to second-guess them based on their own personal values or what they think the people believe, what is the proper role of the courts in ensuring that the political branches are themselves deriving their authority from the people, without whose support, in our system, they have no legitimate authority at all?

The most troubling aspect of Bush v. Gore was that it stopped a recount, proclaiming that there was no way to complete it in a manner both fair and timely. In a close election, that's essentially to say there is no way for the political system to derive its legitimacy from the people. I don't think it's too much to expect a potential Supreme Court Justice to be asked to reject such a view, and to affirm the opposite: that precisely because we have a republican form of government, the state has a compelling interest in allowing those eligible to vote to do so, and even more so to knowing to the best of its ability how the people actually voted.

The Democrats may not get any such affirmation; they may not get clear answers of any kind. But through such questions, they can at least put the nominee and the Court on notice for how high they understand the stakes to have risen, and how important the perception of legitimacy is to the survival of our system of government. They could also give notice for how they would respond to a Court that does not treat the right to vote, and the right to have one's vote counted, as being the fundamental foundation of not only the elected branches' legitimacy, but the courts' as well.