For more than six weeks, President Donald Trump and his allies have waged a mendacious campaign to overturn the results of the election. Much of that campaign has hinged on the idea that the courts could, should, and would deliver the election to him despite the vote tallies after Election Day. But last week, in state capitals across the country, members of the electoral college met to cast their votes for President, and every single one of those electors corresponded to the winner of their state’s popular vote. Despite more than 60 lawsuits, hundreds of tweets, and a parade of made-for-TV “hearings” on supposed fraud, the president failed to persuade any court to reverse any result. To the contrary, the courts smoked out the campaign’s bogus claims of fraud by challenging the president and his allies to prove their allegations, which they failed, repeatedly to do.
For many people, this looks like a triumph for the rule of law and a vindication of our judicial system as a safeguard of democracy.
That reaction is naïve.
The system does not deserve the credit. It was easy for judges to stay out of the way—and hard for them to get in the way—when the margin of victory was so clear and the claims of fraud so transparently false. The election was well beyond the margin of litigation, to use Rick Hasen’s useful phrase.
Instead, a closer look at this cycle of election litigation paints a much more ominous picture, showing just how close our democracy is to failing. Over the past year, fringe legal theories that could upend future elections have moved to the mainstream. The courts have turned even more hostile to voting rights, standing in the way of even modest accommodations for voters. The president’s post-election litigation has crashed and burned, but it has reinforced the pernicious idea, born from Bush v. Gore, that it is appropriate for courts to step in and second-guess results after the ballots are counted. Our electoral system is a rickety old construction; there’s every reason to believe it could buckle when, inevitably, the votes in a future election are not so lopsided.
Judicial Hostility to Voting Rights
Turn your mind back to before Election Day. At that point, the courts certainly did not look like heroes of democracy. The Supreme Court and federal appellate courts had rejected nearly every single pro-voter ruling that came up from the federal district courts—no matter how modest. No bother that these rulings aimed at protecting the vote during a global pandemic; the appellate courts would not let them stand.
In Wisconsin, for example, a federal trial judge ruled that because of the pandemic and unreliable mail delivery the state would have to count all absentee ballots postmarked by election day even if those ballots arrived at election offices a few days later. This modest accommodation for so-called “late-arriving” ballots mirrored exactly what the U.S. Supreme Court had allowed during Wisconsin’s infamous Spring election, which took place amidst the terrifying first wave of the pandemic. But one week before Election Day, with Wisconsin once again facing a tidal wave of infection, the U.S. Supreme Court voted 5-3 to refuse to allow the same relief to go into effect in November.
The federal appellate courts were also a graveyard for voter protections. The Eleventh Circuit blocked a decision in Georgia that would have allowed late-arriving ballots to count. The Fifth Circuit blocked a decision suspending the Governor of Texas’s outrageous order limiting counties to a single drop box for absentee ballots—no matter whether the county served 2,000 voters or 2 million. The Seventh Circuit blocked multiple decisions from Indiana, including one extending the right to vote absentee to people under 65. Remarkably, the Seventh Circuit chose this moment—in the midst of a once-in-a-century pandemic—to issue a sweeping ruling declaring, in essence, that absentee voting falls outside the Constitution’s protection for the right to vote.
At that point, the appellate courts hardly looked like guardians of our democracy. They were, if anything, a menace. If the election had swung narrowly to President Trump, many commentators might now be saying, with some justification, that the courts had delivered the election to President Trump in advance by putting up roadblocks to the predominantly Democratic voters who wanted to vote by mail during the pandemic.
Laying the Groundwork for a Judicial Override of the Election
The courts’ rulings eviscerating federal voting rights claims were wrongheaded, but at least they did not threaten to upend the results of the election after the fact. Much more dangerous were aggressive decisions that laid the groundwork for the federal courts to do just that.
In a series of cases, the Supreme Court and lower courts embraced a previously-obscure constitutional theory known as the independent state legislature doctrine. That theory asserts that the U.S. Constitution empowers state legislatures—and only legislatures—with authority to set voting procedures. On this view, any action by other parts of state government—state courts, executive officials, or election administrators—that depart from the legislature’s wishes are null and void, even if they expand opportunities to vote or make voting more secure and reliable.
The courts’ embrace of this theory created massive uncertainty and opportunities for judicial mischief. It empowered federal courts to reach down into state elections and invalidate votes if federal judges determined that state judges or election officials had departed from the state legislature’s wishes. If enough votes were infected by this kind of supposed defect, it could easily swing the result of an election.
Pennsylvania was ground zero for this potential catastrophe.
Months before the election, Pennsylvania’s Supreme Court ruled that its own state Constitution required officials to accept late-arriving absentee ballots. This ruling departed from the deadline written into state statutes by the legislature. Ordinarily a state’s highest court interpreting its own constitution is the last word on state law. Not so, according to the “independent state legislature” doctrine.
The Republican Party, invoking this theory, asked the U.S. Supreme Court to override Pennsylvania’s judgment and declare invalid any votes that arrived after Election Day.
Remarkably, only two weeks before Election Day, four conservative Justices on the Supreme Court agreed, voting to immediately override the Pennsylvania Supreme Court’s decision. They were only one vote shy of the five-vote majority they would need. But by that time, President Trump had already nominated Amy Coney Barrett to fill the late Justice Ruth Bader Ginsburg’s empty seat. The President bragged openly that her appointment would allow the Supreme Court to deliver him the election.
The Republican Party followed his lead, filing an emergency motion asking the Court a second time to invalidate Pennsylvania’s late-arriving ballots. The motion was timed carefully: it would be on Justice Barrett’s desk, fully briefed, the moment she was confirmed, inviting her to join her four conservative colleagues.
The brazenness of this strategy was breathtaking: the party of the President that had just appointed Justice Barrett was asking her to change the rules of the election in his favor only one week before the vote.
Justice Barrett sidestepped that invitation, recusing herself on the grounds that she had not had enough time to consider the issue. But, astonishingly, her new colleagues—Justices Alito, Thomas, and Gorsuch—signed an opinion making clear that they believed the extended ballot deadline was unconstitutional and warning, ominously, that the Court remained free to take up the case after the election: “if the State Supreme Court’s decision is ultimately overturned”—that is, if Justice Barrett voted with them after the election—“a targeted remedy will be available.”
While Justice Kavanaugh did not join that opinion, he had made it clear in a lengthy footnote in the earlier Wisconsin case that he, too, was on board with the “independent state legislature” theory. As commentators noted, Justice Kavanaugh had even endorsed some of the president’s rhetoric against mail-in voting, writing that “chaos and suspicions of impropriety . . . can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election.” Chief Justice Roberts, for his part, scrupulously avoided tipping his hand before the election, but he had written a scathing dissent in a 2015 case embracing a version of the same “independent state legislature” theory.
A closer look at this cycle of election litigation paints an ominous picture, showing just how close our democracy is to failing.
These machinations before the election laid the groundwork for the nightmare scenario: an election that hinged on Pennsylvania (or some other single state) where the vote margin was so close that it depended on late-arriving ballots (or some other accommodation made by state courts or state officials). The conservatives on the Supreme Court had given anyone who was watching every warning that they were ready to flip the results in those circumstances. As if to leave no doubt, Justice Alito ordered Pennsylvania officials to “segregate” the late-arriving votes, directing that “all such ballots, if counted, be counted separately.”
The sad truth is that when President Trump claimed, repeatedly, that the Supreme Court could win him the election, he wasn’t howling at the moon. He just didn’t win enough votes to get close enough to snatch it.
Bush v. Gore’s Legacy
The impulse to look to judges to decide elections is the poisonous legacy of Bush v. Gore. But what the Supreme Court was contemplating this year is far more radical than what it did then. In that case, candidate Gore was trying to come from behind to win the election by hoping to find enough votes in South Florida that had gone uncounted due to the infamous and inscrutable “hanging chads.” The Supreme Court ended that effort by saying, in effect, that the recount was too haphazard and standardless to be trusted. Set aside for now that the Court had to invent an implausible constitutional theory in order to reach that result. What the Supreme Court ultimately did was to prevent Gore’s forces from finding enough additional valid votes to, potentially, put him over the top.
What the Court was contemplating this year was even more dangerous. After the election, the Trump forces asked the courts to cancel ballots from eligible voters that were already cast and counted. They were asking the courts to discard ballots not because they were fraudulent or because there was any doubt that they reflected the will of an eligible voter, but based on technicalities or disputed interpretations of state laws. More bluntly, people’s votes would be trashed to pay for the supposed sins of state courts and election officials who exercised their authority to make voting easier or more certain.
In a filing to the Supreme Court the day after the election, the Trump campaign itself asked to participate directly in the case that would have invalidated Pennsylvania’s late-arriving ballots. They could not have made their aim clearer: “Given last night’s results, the vote in Pennsylvania may well determine the next President of the United States. And this Court, not the Pennsylvania Supreme Court, should have the final say on the relevant and dispositive legal questions.”
The Trump Campaign has continued its explicit demand for a judicial override: this weekend it filed another petition to the U.S. Supreme Court asking it to retroactively overturn various aspects of Pennsylvania’s election procedures and declare the election results illegal before Congress meets to count the electoral college votes on January 6.
The president’s post-election litigation … has reinforced the pernicious idea, born from Bush v. Gore, that it is appropriate for courts to step in and second-guess results after the ballots are counted
The Supreme Court hasn’t taken up the Pennsylvania cases (or any others) because the outcomes wouldn’t have mattered. There weren’t enough late-arriving ballots to cover President Trump’s margin of defeat in Pennsylvania. And President Trump would have needed to reverse the results in at least three states to win the electoral college. There was no plausible way to score that hat trick.
Wisconsin: A Warning of Things to Come?
We will never know what the Supreme Court would have done if the election had come down to a small margin a single state like Pennsylvania—or even a large margin but with a legal theory that could have eviscerated enough of Biden’s votes. But a post-election lawsuit in Wisconsin shows just how willing some judges now are to step in and override the electorate’s will.
The Trump campaign challenged Wisconsin’s vote tallies only in the counties that include Milwaukee and Madison, the state’s most racially diverse and populous areas. Their explicit goal was to cancel enough Democratic votes to swing the statewide result.
They argued in court that routine election procedures that had been in place for years—like the practice of local clerks completing missing address details on a witness certification—were in fact violations of state law, even though those procedures had been explicitly endorsed by the bipartisan Wisconsin Elections Commission. There was not even a whiff of evidence that any votes affected by these supposed technical errors were cast by ineligible voters or otherwise fraudulent. But yet only a bare 4-3 majority of the Wisconsin Supreme Court rejected the Trump campaign’s challenge.
The three dissenting justices in Wisconsin wrote fiery and impassioned opinions that dripped with righteous indignation. In their telling, the real scandal was that the court did not step in to retroactively declare the election procedures illegal and, presumably, to invalidate the votes that were cast according to those “defective” protocols. Completely absent from their opinions was the fact that they were talking about shredding the ballots of tens of thousands of Wisconsin citizens who had cast their ballots in good faith following official guidance—and that the court was being asked to do so only in the most Democratic and racially diverse parts of the state.
President Trump lost the election in Wisconsin by more than 20,000 votes, but the result was ultimately decided by a single judge’s vote, 4-3. One member of that majority is a conservative justice who previously served as chief counsel to Republican ex-governor Scott Walker. He demonstrated an admirable independent streak, but it’s difficult to gauge what would have happened if the electoral college had come down to Wisconsin’s votes, further increasing the extraordinary pressure on judges to deliver results. As if to underscore just how easily it could have turned the other way, consider that one of the justices in the majority only joined the court in April because she won an upset victory in Wisconsin’s Spring election—the same one that was marred by the pandemic.
We should not congratulate ourselves because the system “worked.” We were saved by the lopsided verdict of the voters, not by the courts. This cycle of endless litigation has, if anything, reinforced the wrong lesson from Bush v. Gore. One of our political parties and, it seems, growing ranks in our judiciary, have embraced the idea that the courts can substitute dubious and disputed legal theories for the expressed will of the voters. The Republican Party’s relentless and baseless claims of fraud are teaching much of the population to distrust the vote tallies reported by honest election officials, further softening the ground for a judicial override.
The system is not working. The arguments and tactics advanced this year will lay around like a loaded gun ready to be used by a future candidate who loses by a narrower margin or by a single state. Now is the time to get to work unloading that gun, not to cheer the fact that this president couldn’t fire it.
Editor’s note: For a different perspective, readers may be interested in Samuel Issacharoff’s Judges Doing What Judges Do: A Unified Theory of the 2020 Election Season.