It was a little after 2am, less than two hours after Joe Biden addressed supporters in Delaware to announce his optimism for a Democratic victory in the presidential election. US President Donald Trump stepped up to the podium at the White House press briefing room as Hail to the Chief played on the speakers.
This election, Mr Trump stated emphatically, is set to be “a fraud on the American public”. It was more than a dispute of the result, which has yet to be tabulated fully, and more than an allegation of impropriety. It was a criminal charge.
Consequently, Mr Trump vowed, in the event of any apparent defeat on his part, he would take the result to the Supreme Court – the highest judicial body in the land.
It is often said that in the 2000 US presidential elections between George W Bush and Al Gore, Mr Gore lost by only one vote. That vote was not in the Electoral College, but in the Supreme Court. It was the only time since 1876 that a presidential election was decided that way, rather than through the normal electoral process.
To be clear, courts do not decide which candidate has won. They decide whether the process by which votes were counted was valid, or whether they can be recounted.
Even then, the Supreme Court is not the first port of call. Far from it.
To understand how the election might end up in the Supreme Court, it is important to recap briefly how the US election works.
The US election is not one election. It is 50 elections in 50 states, each with the end goal of appointing “electors” who are pledged to vote for a specific candidate. The electors are assumed to declare for a candidate on the basis of a given state’s popular vote. A state’s legislature can override that popular vote by choosing electors who might vote differently, but such a move would be unusual to say the least – particularly if there is no overwhelmingly obvious public interest for doing so.
The final deadline by which all states are meant to present their “electors” to choose the president is on December 8. Each state’s popular vote would ideally be decided by then.
So whether or not the election becomes a legal case depends on what happens between now and December 8.
Any dispute about the process in an individual state can be taken to that state’s court system, and appealed up to the state’s supreme court and, ultimately, the federal Supreme Court. At no point is any court compelled to hear a case if it feels that the matter could be better resolved through the state’s normal electoral process.
That electoral process varies from state to state. Each has its own rules on when recounts can be triggered and how they are conducted. They also have their own rules on how disputes are initially adjudicated. In Texas, for example, that authority lies with the state governor. Some other states have election boards that decide. In all states, the legislature can weigh in to choose whether it wants to choose electors that will deviate from the popular vote.
So, for Mr Trump’s team to receive an audience in the Supreme Court, and convince the court’s justices that the case is worth hearing, there are a number of requirements to be satisfied.
The Electoral College result would have to be very close, so that one or more states would swing it. Without that, there would be no point in undertaking the legal battle ahead.
Those contested states’ internal results would also have to be very close – too close to call comfortably – and the Republicans would need a good argument that a simple recount or decision from the state’s non-judicial institutions could not be trusted. Then the state’s own courts would have reason to hear the case. If they are convinced that this is a matter for judicial involvement, the Supreme Court is more likely to be convinced in the event of an appeal.
In 2000, it all hinged on Florida. The results there were extremely close – less than 1,000 votes between Mr Bush and Mr Gore. The Florida Supreme Court ordered a recount of votes across the state. After appeals, the case went to the US Supreme Court, whose reluctance to get involved was clear. It sent the first appeal by the Bush team back to the Florida Court by unanimous vote. Only when the Florida court called once again for a recount was an appeal to the Supreme Court accepted.
The main tension comes down to whether the power to order recounts and legitimise the result ought to come from courts or from state legislatures. The court must be convinced that there is no other way to resolve the election.
So it is less of a matter of process and more of a matter of politics and the national psyche. If Mr Trump manages to create the appearance of so much chaos that the state legislatures and democratic system cannot be trusted, the Supreme Court might feel more inclined to take on its appeals and grant a decision – for the sake of national unity. In his allegations of mass fraud during his statement today, Mr Trump attempted to do just that.
It is also worth noting that the Supreme Court’s ultimate decision, to rule that Florida’s specific recount process was unconstitutional and that there was not enough time for any alternative solutions than to accept the result, was split along ideological lines. Conservative justices backed Bush’s argument and liberal justices backed that of Gore. But two Republican appointees dissented from their conservative colleagues in different areas of the case.
Supreme Court justices are people, not machines of any given party. An ideological split 20 years ago does not necessarily presage one today.
Mr Trump gave an indication of his plan to play the odds of the ideological split as far back as September, when the Republicans were racing to get Amy Coney Barrett appointed. “I think [the election] will end up in the Supreme Court,” he said. “And I think it’s very important that we have nine justices.”
That statement unintentionally put an enormous moral burden on Justice Coney Barrett’s shoulders. If she was the deciding vote in the president’s favour after being installed in a rushed process just before the election, the credibility of the Supreme Court could be ruined.
Going to the Supreme Court is not that simple. When Mr Trump vowed to do so, he was speaking more euphemistically than factually. He was signalling to his supporters that chaos has arrived. The trouble is, his signals may turn out to be a self-fulfilling prophecy.
Sulaiman Hakemy is opinion editor at The National
