The U.S. Presidential Election Will Not Come Down to Amy Coney Barrett
By: Catherine Jones Payne
Tags: Supreme Court, Election 2020, Politics, United States, Elections

The U.S. Presidential Election Will Not Come Down to Amy Coney Barrett

The Supreme Court may rule on a number of election questions, but there will be no 5–4 vote to hand the presidency to Donald Trump. Catherine Jones Payne Follow Nov 14, 2020 · 5 min read

Photo by Claire Anderson on Unsplash

The votes are (mostly) counted. Joe Biden has been declared the winner of the 2020 election. And allegations of rampant fraud are zinging across social media. To hear my Facebook feed tell it, once the evidence has been presented — I keep hearing there is evidence out there somewhere, and Kayleigh McEnany apparently waved around 234 pages of it on Fox News — it will be clear that Donald Trump really won the election. The Supreme Court will ride in to save the day, with Amy Coney Barrett casting the tie-breaking vote.

That’s a fantasy that probably plays well on Parler, but it’s not going to play out in the real world.

The Math Doesn’t Add Up

In this century, a recount hasn’t changed the result of a statewide election in which the initial margin was greater than three hundred votes. And the Republicans have to overturn the results of at least two (and probably three) states to deliver Trump a victory. A hand recount is forthcoming in Georgia, but Biden leads there by about 14,000 votes. Hand audits in Arizona have turned up nothing of consequence. Lawsuits alleging fraud are being tossed out for lack of evidence, Trump lawyers are admitting in court that they have no real evidence, and Republican election officials are saying the vote was legitimate. There is simply not enough of a case to take to the Supreme Court at this time.

To be clear, we should recount the close states, audit the results, and investigate all reasonable claims of fraud. Such close scrutiny will likely find a handful of mistakes and a smaller handful of fraudulent ballots, as in any other election. And the more confirmatory we work we do, the more we undercut voices trying to discredit democracy.

But, unless the Republicans can suddenly produce something earth-shaking, the sorts of lawsuits they are filing aren’t going to be enough to swing two or three states. Their strongest suit is in Pennsylvania, where they’re trying to get ballots disqualified if they were mailed by Election Day but arrived after. If they are successful, they could disqualify about 10,000 late-arriving ballots. In Pennsylvania, Biden is ahead by about 55,000 votes.

But What About the Electors?

However, the Trump campaign’s strategy may be less about credible evidence and more about making enough noise to give Republican legislatures cover to appoint their own slates of electors. There are numerous reasons why this won’t work. If it sort-of worked, the resulting gridlock would probably give us an Acting President Pelosi (or Pompeo, which is another set of constitutional questions). But we can be pretty confident that such a strategy would not get beyond SCOTUS.

The relevant constitutional clause, in Art. II, Section I, reads: “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors.” It would require substantial overturning of precedent for SCOTUS to interpret this as legislatures having the authority to unilaterally overturn state law midway through the process to appoint electors themselves, and it also would prove a hard sell for the originalist judges on the Court, who make up most of the conservative wing.

We can compare the language about the appointment of electors with the language about the appointment of senators (senators were not directly elected by the people until the Seventeenth Amendment was ratified in 1913). While a radical textualist like Neil Gorsuch may (but also may not) say that the words on the page allow legislatures to unilaterally take the reins at any point, an originalist like Amy Coney Barrett is likely to note the difference between these two constructs: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” and “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof.” The legislatures have already directed that the manner in which their state’s electoral votes should be chosen is based on the winner of that state’s popular vote. Furthermore, she is likely to note that the direct appointment of electors by the legislatures was considered and rejected in the Constitutional Convention. In the early Republic, some states did delegate the appointment of electors to the legislatures, but that was governed by the normal process of law.

And that assumes SCOTUS is willing to weigh in on the case at all. Roberts is famously leery of politicizing the Court, and the Court’s recent election decisions have shown it is reluctant to interfere in how states run their own elections. The justices may very well decide they don’t have jurisdiction on the question, leaving the states to settle their own disputes . Up to this point, they have generally struck down federal court rulings on state elections, but left state court rulings in place. And state courts are likely to enforce state law.

Now, could it come down to a fight in a joint session of Congress? Theoretically. The path to this is narrow, and Trump is unlikely to emerge the victor in that scenario — it would require only two Republican senators to decide in favor of our processes of democracy to end the deadlock.

Let’s not kid ourselves — the fact that we’re even discussing these scenarios tells us that something has gone badly wrong, and that many of the traditions and institutions we take for granted are held together not by the force of clear constitutional law but by duct tape and the whims of the people. We should clarify some of these questions in law and close some of the gaps, before we find ourselves looking at the results of a future election that’s equally contested but less clear. But this year, our traditions and institutions will hold. American democracy, as imperfect as it has always been, will emerge the victor, bruised but not broken.