The 2020 presidential election probably won’t end in the sort of nightmare scenario where a legal challenge or recount winds up at the Supreme Court and the justices decide who wins the White House.
“Let’s put the chances of that happening at about 5.2 percent,” Ben Ginsberg, the prominent election lawyer who led the George W. Bush campaign’s legal strategy during the disputed Florida recount in 2000, has quipped in preelection webinars.
Ginsberg bases that on the idea that only three of the country’s 57 presidential elections have been contested and that the 2000 election had one state that was remarkably close and determined the outcome of the election. “That does not usually happen,” he said.
Other election law experts agree that a Supreme Court case to determine the 2020 election would first need to meet several unlikely conditions: a narrow Electoral College count nationwide, with a legal challenge about voting in one or more states that could determine the outcome, and those challenges would depend on federal law and not just state law.
Yet this year has several reasons why legal challenges could be more likely, including a pandemic across the country, a president raging, without evidence, about voting fraud, and the potential threat of violence and foreign interference on Election Day.
But there’s a misconception about how likely it is that a legal challenge will get to the Supreme Court, since Bush v. Gore in 2000 hinged on just 537 votes that were going to determine the outcome of the election, said Vanita Gupta, the CEO of the Leadership Conference on Civil and Human Rights.
“There will be a lot of litigation, but most of it around the counting of ballots likely will not be going to the United States Supreme Court,” Gupta, who also ran the Justice Department’s civil rights division during the Obama administration, said during a briefing held by the National Task Force on Election Crises.
There are signs that it could be a national mess if a challenge that determines the outcome does make it to the Supreme Court, including the handful of rulings from the high court in the ongoing phase of preelection litigation.
Joshua Geltzer, executive director of the Institute for Constitutional Advocacy and Protection at Georgetown Law, said President Donald Trump has confused the public debate about just how a presidential election can be contested.
There is a difference between “conceivable, hard, complex legal questions” that could come out of the 2020 election and “pseudo-legal things” such as questioning the trustworthiness of mail-in ballots generally when there is no basis to do so, Geltzer said during an online event hosted by the German Marshall Fund of the United States.
Trump has spoken of needing to know the winner by election night on Nov. 3 or it would raise questions about the legitimacy of the nationwide results. “That’s not a legal argument,” Geltzer said. “That’s just a statement, and it’s an erroneous statement.”
Ginsberg, during the same event, pointed out that states have their own set of rules and timetables for how ballots are counted and disputes resolved afterward.
“It is one thing to talk in broad generalities about an election being fraudulent or rigged, and very different to be able to actually bring that case in a granular precinct-by-precinct, state-by-state way,” Ginsberg said.
Trump’s campaign will have to amass the evidence in preelection voting and then on Election Day if it wants to take the president’s broad charges of fraud and put it into play in those different state contests and recount procedures, Ginsberg said.
The thing to watch is how smoothly vote counting goes on Election Day and whether there are broad challenges from the Trump campaign, Ginsberg said, and the campaigns are now looking for both lawyers and civilians to staff such an overtime fight.
“Will they have enough people to monitor what’s happening as the ballots are cast, both early and Election Day?” Ginsberg said. “Will they see instances of fraud or irregularities that come up in the postelection in dispute resolution in the counties?”
One of the most closely watched states will be Pennsylvania, and not only because of its role as a swing state that could be key to the presidential race outcome.
Pennsylvania officials don’t start counting mail-in ballots until Election Day, and there is an ongoing legal challenge to a state court ruling that allows mail-in ballots to be counted if they arrive up to three days after Nov. 3.
Last week, the Supreme Court deadlocked, 4-4, on a preliminary request from Republicans to undo that Pennsylvania state court decision, meaning the state court’s decision stays in place.
But Republicans have already asked the Supreme Court to hear the full
appeal. Justice Amy Coney Barrett, Trump’s third high court appointee
who was confirmed Monday, did not participate in the court's decision Wednesday to not decide before the election whether those post-Nov. 3 ballots get counted.
Barrett did not recuse from the case, but the Supreme Court press office said she did not have enough time to fully review the case before a decision was needed. Justice Samuel A. Alito Jr. wrote on the decision to say that the Supreme Court could still agree to decide the case at a later time under a shortened schedule.
And on Monday night, with the justices split 5-3 along ideological lines, the Supreme Court halted an effort in Wisconsin to accept mail-in ballots up to nine days late as long as they were postmarked by Nov. 3.
Justice Brett M. Kavanaugh, a Trump appointee, in a concurring opinion, wrote that some states “want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election.”
In a dissent, liberal Justice Elena Kagan responded that there are no results to “flip” until all the valid votes are counted, and it would be suspicious or improper to refuse to tally votes once the clock strikes midnight on election night.
“To suggest otherwise, especially in these fractious times, is to disserve the electoral process,” Kagan wrote in a dissent, joined by liberal justices Stephen G. Breyer and Sonia Sotomayor.
There’s another way the Supreme Court could end up deciding the election, legal experts say. It wouldn’t be through challenges to how elections were run but in how Congress decides to tally up the Electoral College votes on Jan. 6.
The nation’s 133-year-old law for picking a president has a provision that has never been needed to settle a disputed election, since it deals with a situation that would happen only after a cascade of seemingly improbable events.
The problems so far have been theoretical: What if a state submits two different election results, and the House and Senate clash on which results should be tallied? There are conflicting interpretations of what the law requires Congress to do and whether it could end in a lawsuit that winds up before the Supreme Court.
There are almost infinite fact patterns that could give rise to just such a case, and they could play out very differently depending on how the situation arose, Adav Noti of the Campaign Legal Center said during the task force briefing.
“It is neither inconceivable nor certain that the federal courts, up to and including the Supreme Court, would have their jurisdiction invoked to resolve a dispute like that,” Noti said. “The devil would be in the details.”