As of November 12th 2020, the United States Presidential Election remains undecided. Biden is claiming the mantle of President-Elect. Serious challenges to votes counted in swing states are underway that could produce a late change. Regardless of your partisan bias, election 2020 is in the courts. It is reasonable to expect these various challenges to work their way out of state courts and ultimately to the United States Supreme Court. This is where our country will face it’s greatest challenge since Bush vs. Gore.
After Judge Barrett’s addition to the court in October, conservative leaning Justices hold the majority of seats. Liberal Justices are in the minority. This presents a problem to the court if/when Trump vs. Biden arrives on their docket. I am basing my hypothetical outcome on these assumptions:
- All 9 Justices want to ensure the one person, one vote right of all US citizens regardless of party.
- All 9 Judges are intelligent and fair enough to discern the improbable outcome of several state vote tallies.
- All 9 Judges want the best outcome for Americans.
- All 9 Judges want to preserve the integrity of our elections.
- Al 9 Judges want to preserve the integrity of the SCOTUS.
- The conservative jurists would prefer to avoid a 5-4 or 6-3 split ruling.
- The liberal Judges know they are powerless to effect the final ruling.
With these assumptions in place, I’ll navigate through their potential decisions. A split ruling, with the newest Judge siding with the majority, would be viewed by nearly half the country as a partisan decision. It would undermine the SCOTUS going forward and embolden Democrats to increase the number of SCOTUS seats if they can. If I were one of the conservative Judges, I would do this if there were no other remedies available to me. If evidence is presented that the vote is tainted, I would have no choice but to reject tainted vote tallies. As previously mentioned, it would do harm to the court, but the election process is more important.
Liberal Justices are in a more simplistic position. As a minority bloc, they have little influence to wield other than aggressive questioning during oral arguments. They could offer a detailed dissent to a split ruling after-the-fact but that won’t change the outcome.
Like King Solomon, here is my wishful escape from a split court ruling: the conservative Justices extend an olive branch opportunity to the liberal Justices- We agree in a unanimous 9-0 to conduct a December re-vote in six states (MI, WI, PA, AZ, NV, GA). We stipulate that each state must follow bipartisan count/observation/canvass rules. We stipulate that the only votes to be counted later are military votes from overseas deployments (add in other obvious exemptions that I didn’t think of). If we can’t present a 9-0 ruling, we rule 5-4 or 6-3 (depending on Justice Roberts) to remedy the irregularities presented to the court.
The liberal minority would see the wisdom in this opportunity. It removes the election decision from the courts and returns it back to the voters. It allows the SCOTUS to model bi-partisan behavior when no one else seems capable of it. Maybe the rest of the country would rally around their actions?
This is an imperfect solution that would introduce delays and doesn’t guarantee that the rules would be followed any better the second time. It’s better than the alternatives that I’ve thought through though.
What do you think? Remember, our nation is very divided. Justice is blind but it’s not stupid. This is not a time for partisan disinformation. The title of this article is purposefully misleading. I don’t think we should fully “expect” a 9-0 outcome. Call me skeptically hopeful.