The US election next week would under normal circumstances produce a clear winner by the following morning. After votes are tallied, results would would be certified with winners of each state declared. However, this year’s election is highly irregular thanks to the coronavirus pandemic which has led to a massive uptick in mail-in ballots.
There is also the problem of President Donald Trump’s attitude toward the affair. Democratic candidate and former Vice President Joe Biden leads Trump in all recent polls, often by at least 10 points according to data compiled by FiveThirtyEight. The American president is losing by all accounts and if the surveys are true, could become the first incumbent to lose since George H.W. Bush lost to Bill Clinton in the 1992 election.
At a clear disadvantage in the polls and with 62 million ballots already cast, Trump is preparing to put up a fight to bend the results in his favor. He began laying the groundwork for his contingency plan in the beginning of the year by assaulting the absentee voting process, but the ultimate move came with the confirmation of his latest pick for the Supreme Court, Amy Coney Barrett. Taken in tandem, Trump has convinced his supporters to doubt the legitimacy of mailed ballots and stacked the highest court with judges who can act accordingly.
The result is that the 2020 election is quickly shaping up to be a repeat of 2000’s Bush v. Gore saga that was dragged out for five weeks.
Planting Seeds of Distrust
The first step to undermining the results of next week’s election was to sell the idea to voters. Trump managed this by railing against mail-in voting with unfounded accusations of increased voter fraud. He pushed governors to limit the practice and particularly deny the opportunity for absentee voting to people based on COVID-19 concerns.
Some states, like Texas, have highly restricted access to advance ballots and for those voters have closed all but one ballot drop box in each county. For some counties, such as Harris County which includes the city of Houston, this means only one location for nearly 5 million people.
In states that have allowed voting by mail, the Trump campaign and Republican Party have worked furiously to cancel as many ballots as they can by raising court cases. Essentially, the GOP strategy in such states now boils down to enforcing state-mandated cut-off times for receiving ballots. In three states, legal battles have made their way to the Supreme Court as Trump tries to stop states from extending deadlines.
Supreme Court Takes Center Stage
The Court already ruled that Wisconsin cannot extend its deadline six days past the election as it tried to do, but cases pertaining to North Carolina and Pennsylvania remain to be ruled on definitively. In the latter case, a 4-4 ruling from the Court refused to side one way or the other and let the lower court’s ruling stand, but Barrett’s confirmation to the bench will likely alter that math.
Both states are key swing states and Biden’s lead in both is within the margin of error. Invalidating absentee votes received too late would likely help the Trump campaign as Democrats are more likely to vote by mail.
Barrett, who will join four other conservative-leaning justices, is key in ruling on the state election issues. More crucially, the newest justice will have a significant part to play in the event of a contested election à la Bush v. Gore.
In 2000, George W. Bush opposed hand recounts of ballots in four Florida counties that had Democratic majorities. The case bears similarities to next week’s election, notably that it featured a Republican candidate arguing against counting ballots.
Three Supreme Court justices, including the recently-confirmed Barrett, worked on Bush’s legal team. Chief Justice John Roberts assisted the lawyer who would present the case in Florida’s Supreme Court.
Justice Brett Kavanaugh, appointed by Trump, worked in Florida to prevent recounts in Volusia County and was hired by Bush shortly after his election win. Finally, Barrett was employed by a law firm and assisted with researching matters pertaining to the case.
Two of Trump’s appointees were directly involved to the 2000 Bush v. Gore case. This cannot be a coincidence as the president is preparing his options in the event that he loses on Tuesday. In that event, the outcome could take weeks to determine, particularly as the battle over counting mailed ballots continues.
Election a Deciding Factor in Choosing Barrett
Trump cited the issue as the reason for necessitating a quick appointment of Barrett.
“I think this will end up at the Supreme Court,” Trump said. “And I think it’s very important that we have nine justices.”
During her Senate Judicial Committee confirmation hearing, Barrett declined to commit to recusing herself from ruling on a hypothetical case over a challenged election. The new justice was handpicked for this very case and it’s unlikely she would rebuke Trump by sitting it out.
With a conservative majority now on the Supreme Court bench, the only remedy is for Biden to win a commanding share of in-person votes on election night. Doing so would give him a lead that Trump can’t take away by barring mailed ballots.
A solid election night victory would also prevent a Bush v. Gore scenario from playing out once again. In the 2000 election, Bush led Gore by only five electoral votes with a lead of only 1,000 votes in Florida. The tight race of 2000 is unlikely to be repeated, but that won’t stop Trump from trying to discredit unfavorable results.
Throwing out ballots and turning to the Supreme Court — a third of which he appointed — might be Trump’s only means of securing the 2020 election. The president knows this and after this week’s confirmation of Barrett, is prepared to go down fighting.