America braces for a supreme election meltdown in the courts

Twenty years after the Supreme Court effectively decided the 2000 US presidential election in a controversial partisan verdict, the spectre of the November 3 election ending up in the courts haunts Americans. Only this time, with the incumbent refusing to commit to a concession if he loses and conservative judges in a majority in the Supreme Court, things could get a lot uglier.

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On a freezing December night nearly 20 years ago, journalists and news crews crammed into the pressroom of the Supreme Court as the clock ticked towards a midnight deadline, waiting for a verdict that would decide who would be the 43rd president of the United States of America.

At around 10pm local time on December 12, 2000, as journalists were worrying about being asphyxiated in the packed room, the verdict of the George W. Bush v. Albert Gore Jr. case finally fell.

By a tight 5-4 majority, the nine-member Supreme Court bench ruled that a recount of votes in the contested state of Florida must end.

The justices – including an octogenarian and two septuagenarians – had already left the building, and it was left to TV correspondents – braving the cold on the marble steps of the courthouse, to thumb through the 65-page ruling to deliver the verdict to the American people.

The verdict was split on ideological lines with five conservative judges halting the Florida vote recount, which was gradually giving Gore an edge over Bush in the knife-edge 2000 race. By narrowly outnumbering the four liberal justices who argued the recount should proceed, the conservatives had ruled in the Republican Bushs favour.

“This ends the election,” ABC News commentator George Stephanopoulos concluded minutes after the verdict delivery. “Six hundred votes, approximately, separated Gore and Bush in the state of Florida and now, by one vote on the Supreme Court, this election is over.”

And with it, a sense of assurance among many Americans, that the countrys highest court would rise above partisan politics. In his dissenting opinion, liberal Supreme Court Justice John Paul Stevens did not mince his words. "Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law,” wrote Stevens.

The ruling had profound effects on the nation and its citizens, from “Bush v. Gore PTSD” – post-traumatic stress disorder – as a New York Times journalist recently dubbed it, to a flood of books, law reports and school programmes on the “Supremely Bad Decision”.

“This was a shattering 5-4 decision with transparent political polarisation leading to a tremendous drop in the publics general understanding of the role of the Supreme Court and it opened the way to a kind of cynical manipulation of the [judicial] appointments,” said Bruce Ackerman, a constitutional law scholar at Yale Law School, in an interview with FRANCE 24. “For the legal academy, it was a shocker. From the vantage point of the political elites, it encouraged cynicism. From the vantage point of the general public, it encouraged alienation.”

On Saturday, when President Donald Trump picked Amy Coney Barrett as his nominee to replace the late Justice Ruth Bader Ginsburg on the Supreme Court, he revived a national trauma that Americans who lived through the 2000 election hoped never to experience again.

But Trump has directly tied the Supreme Court nomination to the upcoming November 3 presidential election. “I think its very important. I think this will end up in the Supreme Court and I think its very important that we have nine justices,” the US president told reporters days before officially nominating Barrett. “I think its better if you go before the election because I this…this…scam that the Democrats are pulling, its a scam. The scam will be before the United States Supreme Court.”

.@POTUS: "I think this will end up in the Supreme Court. & I think it's very important that we have 9 Justices. & I think the system is going to go very quickly. I'll be submitting at 5 o'clock on Saturday, the name of the person I chose for this most important of positions."

— CSPAN (@cspan) September 23, 2020

The “scam” appeared to be a reference to Trumps repeated allegations of voter fraud and corruption in the upcoming election. Since the Covid-19 pandemic, Trumps unsubstantiated accusations have focused on mail-in ballots since voters this year are more likely to use an electoral option long offered to most Americans without any controversy.

The most litigated election ever

Trumps consistent refusal to commit to a peaceful transfer of power, a bedrock of the democratic system, puts the US in dangerous terrain amid fears of violent, post-electoral discord and a constitutional crisis gripping the global superpower.

Weeks before the November 3 election, legal battles are already under way in what has been called “the most litigated election ever”. The Stanford-MIT Healthy Elections Project has tracked more than 300 litigation cases over access to vote issues, including absentee ballot services, extending voting hours, allowing citizens with criminal records to vote and providing free public transportation services to vulnerable groups.

A pattern has clearly emerged, with “Democrats trying to ensure more people are able to vote and Republicans that they dont", explained Caroline Fredrickson, visiting professor at Georgetown Law, in a phone interview with FRANCE 24. “Unfortunately, the Republicans learned the lesson that its good to own the courts. Unfortunately, the Democrats didnt realise the whole idea – although they now have, and theres currently an enormous litigation effort. The Democrats are definitely working very hard, challenging every restriction Republicans are trying to put forward, and having a certain amount of success. But its like guerrilla warfare across the country, its just such a vast undertaking.”

Complicated systems, obsolete procedures, originalists sticking to the text

The enormous legal challenge is further complicated by the convoluted US election system, administered by different state laws instead of a centralised election commission, and hampered by obsolete infrastructure and procedures.

This includes an anti-democratic electoral college system that is criticised every election season, particularly after the 2000 Bush-Gore election, when – for the first time in over a century – the winner, a Republican, won more electoral votes than the loser, a Democrat who actually won the election with more popular votes.

Americas failure to update its democratic system, set in the late 18th century – like France, which has had new constitutions and five republics since the French Revolution – is the subject of profound academic discourse.

>> Read more: Ginsburgs death exposes frailty of US system

But upgrading the democratic bedrock of a conservative country that has deified its foundational narrative while overlooking historic wrongs – including slavery and terrors inflicted on native American tribes – is easier said than done.

There have been historic periods of reform, such as the era that Ackerman calls “the New Deal civil rights regime” beginning with Democratic President Franklin Roosevelts 1930s public works and recovery project. But that ended in the 1980s under the Ronald Reagan administration, according to Ackerman. “Reagan challenges this and theres an increasing struggle over the vitality of the New Deal civil rights regime and climaxes with Trump,” he explained.

Barrett, Trumps latest Supreme Court nominee, is a textbook conservative “textualist” and “originalist” – terms applied in the US for legal practitioners who strictly interpret the law and apply the Constitution as it was understood by those who drafted and ratified it more than 200 years ago.

While some conservative Supreme Court judges in the past have made progressive rulings, Fredrickson does not believe Barrett – who criticised a Supreme Court ruling upholding the constitutionality of a key provision of the Affordable Care Act (or “Obamacare”) – is one of them. “Donald Trump sees judicial appointments as another element in his re-election strategy. Theyre not picking someone they have any doubts about, she will not deviate,” Fredrickson asserted.

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