What is the role of the Supreme Court in deciding the presidential election?

The most famous example of the Supreme Court intervening in a contested election was the Court’s decision in Bush v. Gore during the 2000 election. That case focused on the complexities of the recount in Florida’s very close race between Bush and Gore. After a chaotic and uneven recount process, the Supreme Court of Florida ordered a statewide recount of all votes cast in the presidential election. The Bush campaign challenged the ordered recount, alleging that Florida’s recount measure violated the Equal Protection Clause because the state did not have a uniform recount mechanism (meaning that each county within the state had different means for undertaking the recount). In a 7-2 decision, the Court found that there was indeed an Equal Protection violation. However, even in the face of an Equal Protection violation,  there was still an open question: whether an alternative recount method could be used to remedy the violation. In a 5-4 decision, the Court’s conservative justices found that no alternative recount mechanism could be implemented to satisfy the safe harbor deadline imposed by the 3 U.S.C. § 5. The Court’s decision ultimately halted the recount and thus effectively handed the election to Bush. 

There are a number of legal issues discussed in this FAQ that could theoretically end-up before the Court. Essentially, if there is a dispute over the meaning/application of the Electoral Count Act or if there is some constitutional violation stemming from any of the above scenarios (for example, a Due Process violation in the situation where a state cancels an election), the Court would have jurisdiction to hear the question. Additionally, it is not inconceivable that an aggrieved party may attempt to argue that the Electoral Count Act itself is unconstitutional — a claim that the Court would certainly have the power to hear. 

There is an argument, however, that concerns justiciability: namely, that the Court does not have the jurisdiction to hear issues related to a presidential election, as those issues should be left to Congress. Within constitutional law, there is a theory known as the “political question doctrine” that states that there are certain issues that are inappropriate for judicial review and should be left to the politically accountable branches. In the 1972 case O’Brien v. Brown, the Court itself seemed to signal that elections fall under the political question doctrine. The O’Brien Court explicitly noted that there is a “large public interest in allowing the political process to function free from judicial supervision” in questions involving the electoral process. Based on this theory, some scholars have argued that the Court did not have the authority to decide cases such as Bush v. Gore. It is not inconceivable to imagine that the Court would rely on the political question doctrine to avoid intervening in a future election dispute. The Court may want to avoid the kind of controversy that was created in the wake of the Bush v. Gore decision and simply take itself out of a political fight based on justiciability concerns.

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