Don't Look To Bush v. Gore For 2020 Blueprint

By Jimmy Hoover | November 4, 2020, 4:31 AM EST

As the nation waits with bated breath for the results of the 2020 presidential contest, the prospect of litigation over mail-in ballots in battleground states has led to fear that it could once again come down to the Supreme Court to declare a winner. 

However, election law experts say Bush v. Gore — where a conservative Supreme Court majority effectively sealed the 2000 election for President George W. Bush — was a "black swan event" and is unlikely to be repeated.

"We had an incredibly rare probability event," Loyola Law School, Los Angeles professor Justin Levitt said of the razor-thin margin in Florida during the 2000 presidential election. "The chance that it happens twice is that much more rare, and the fact that we've had so much litigation so far makes it rarer still."

In other words, he told Law360 in a recent interview, the 2020 race has to be "not just really close but really, really, really, really close for courts to decide the election rather than voters."

The Associated Press and other media outlets could not declare a winner by Wednesday morning due to the number of ballots waiting to be counted in Pennsylvania and other battleground states.

Speaking at the White House early on Wednesday, President Donald Trump claimed without evidence that Democrats are trying to cheat by counting votes after Election Day. Although the counting of legally cast votes always continues after Election Day as required under state laws, Trump declared himself the rightful winner of the election and promised to go to the Supreme Court.

"We are up BIG, but they are trying to STEAL the Election," he said in an earlier tweet that Twitter flagged as "disputed" and possibly "misleading." "We will never let them do it. Votes cannot be cast after the Polls are closed!"

In an early Wednesday tweet, Joe Biden said, "It's not my place or Donald Trump's place to declare the winner of this election. It's the voters' place."

The country may not know the winner of the presidential election for days, given the historic number of mail-in ballots cast this year due to the novel coronavirus pandemic, but experts say that doesn't necessarily mean the Supreme Court will play a central role in siding with one candidate over another.

Instead, Levitt said recently, it will likely come down to election officials and their "far more democratic, far more boring" task of counting the outstanding ballots.

While post-election litigation is all but certain, experts point out this is the case in nearly every election.

"'Will it make a difference?' is another question entirely, and it is very difficult to predict," said James Garner, a law professor at the University of Buffalo, in an interview before the election. 

"It wouldn't surprise me if courts would intervene in unusual and unprecedented ways," he added. "There is so much partisan encouragement coming from the president. We may see a response to that in the form of kinds of judicial creativity ... but I would hope that the laws on the books would be followed scrupulously."

One case involving the validity of thousands of potential Pennsylvania votes is currently pending before the Supreme Court. Pennsylvania Republicans are once again asking the justices to invalidate mail-in ballots received after Election Day, after the court rejected an earlier request to do so in a 4-4 tie.

The court declined to revisit the case before the election in late October, but Justice Samuel Alito Jr. said it could return to the issue after Nov. 3 and potentially invalidate late-arriving ballots. Over 168,000 voters sent their ballots by mail after the Supreme Court's initial decision upholding the deadline extension, according to Keystone State election officials, who have now segregated late-arriving ballots in the event of the Supreme Court's intervention.

Justice Amy Coney Barrett could play an important role in the case going forward. She declined to participate in a procedural motion earlier due to time constraints, but she could well decide to weigh in on the merits, notwithstanding Democratic calls for her recusal. In such a scenario, Justice Brett Kavanaugh would likely emerge as the swing vote. He initially voted with the conservatives to block Pennsylvania from extending the deadline for mail-in ballots but later decided not to revisit the case before the election.

Reached by email Wednesday morning, Levitt held fast to his prediction that the election was unlikely to be decided in court.

"We're exactly where I said we were going to be," said Levitt. "A few states with lots of mail ballots and no ability to count them early, waiting for ballots to count but without signs of meaningful irregularities. A few meritless lawsuits the courts have been tossing, over a small number of ballots. And a few tweets by the president that are factually baseless and legally meaningless."

In fact, he added, "today was relatively smooth. That makes the likelihood of dispositive litigation smaller still."

--Editing by Kat Laskowski.

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