Democrats with guns will speak...

If Harris wins, will the Supreme Court steal the election for Trump?

It depends on how much Harris can run up the score.

by Ian Millhiser

Three things are true about the current, Republican-controlled Supreme Court.

The first is that, in 2020, when outgoing President Donald Trump was pushing his fellow partisans on the Court to overturn his loss in that year’s presidential race, the Republican justices didn’t do it. Despite everything this Court has done before and since to undermine democracy and write Republican policy proposals into the law, even these justices balked at joining a coup. Joe Biden won by a sufficiently clear margin that even this Court didn’t question his victory.

The second truth is that, in 2000, when the election was much closer and turned on the outcome in a single state, the Court did hand Republican George W. Bush the presidency in Bush v. Gore. All five of the justices who typically voted for outcomes favored by the GOP were in the majority in Bush, and all four of the justices who typically favored the Democratic Party’s goals were in dissent. The majority’s reasoning was widely mocked, in no small part because it seemed to abandon longstanding conservative principles in order to achieve a partisan end.

And then there’s a third reality about this Court: In the past year, the Court has gone out of its way to protect Trump from the legal consequences of his behavior.

Last March, after the Colorado Supreme Court ordered Trump removed from the ballot based on a very persuasive argument that, by inciting the January 6 insurrection, Trump violated the 14th Amendment’s ban on high officials who “have engaged in insurrection or rebellion against” the United States, five Republican justices effectively neutralized this provision of the Constitution for the duration of the 2024 election.

Similarly, the Court’s opinion in Trump v. United States (2024) gave Trump broad immunity from criminal prosecution for crimes he committed while in office. The most astonishing part of the Trump immunity case held that, if he is returned to office, Trump may give any order he desires to the Department of Justice — even if he orders federal law enforcement to act “for an improper purpose” — and Trump would be immune from criminal consequences for giving these orders.

Meanwhile, Trump is openly campaigning on having his political rivals arrested. He even suggested that critics of the Republican Supreme Court “should be put in jail.”

Right now, polls show the race between Trump and Vice President Kamala Harris to be more or less a coin flip. On Election Day, the country could easily find itself in another Bush v. Gore situation. And, if Trump loses, his behavior after his 2020 loss suggests that he will eagerly petition a GOP-controlled Supreme Court to undo the will of the voters.

The only uncertain question is whether these justices would join him in a second effort to overthrow the results of a presidential election.

A coup is much more likely if the election is very close

In retrospect, the result in Bush v. Gore was not surprising. Once all the other states’ votes were counted in 2000, the winner of the presidential election turned entirely on who won Florida. And initial tallies in that state showed Bush leading by 1,784 votes (that lead eventually shrunk to 537 votes).

The justices who wanted Bush to be president didn’t actually need to do much to ensure his victory. All they had to do was maintain the status quo, and prevent Florida from recounting the votes to potentially place Gore in the lead. And the five justices in the majority did just that, ordering the state to halt a recount that might have revealed that Gore, and not Bush, was the real winner of the election.

Of course, the Court’s decision was hard to defend on its legal merits. It was unusually radical, faulting Florida for failing to apply “uniform rules” to the ballot recount, and suggesting that any state that applies slightly different procedures in one county than it does in another violates the Constitution.

Were this rule applied universally, Democrats could have wielded it to make American election law much more egalitarian and progressive. But the five justices in the majority made sure this would not happen, ruling that “our consideration is limited to the present circumstances.” Bush was a one-time-only decision, breaking out a radical theory of equality for exactly as long as it took to install a Republican in the White House, then immediately placing that theory back on the highest shelf.

But the cynical nature of the Court’s decision did not change the fact that, once five justices committed to making Bush president, it was very easy for them to find a way to do so. Again, all they had to do was keep everything the same in one state until Bush was officially declared the winner of the election.

Compare this result to the multiple election disputes that arose out of the 2020 election. While several states were nail-bitingly close, Biden won a 306-232 victory in the Electoral College. To change the result, Trump’s lawyers needed to convince the justices to toss out about 43,000 Biden votes in three different states.

That means the justices would have needed to reach the implausible conclusion that, in one presidential election, three states somehow violated either the Constitution or federal law so severely that they declared the wrong candidate the winner. The likelihood that such a cascade of errors would independently occur in multiple states is, to put it mildly, very small. And the justices probably realized that if they tried to convince the American people that such an implausible series of events had occurred, large numbers of Biden’s more than 81 million voters would have taken to the streets and refused to accept the Court’s ruling.

Thus, the more that the 2024 election looks like 2000, with the outcome turning on a single state, the more likely it is that the Republican justices will intervene to ensure a Trump victory. The more that Harris can run up the score, the more likely it is that the Court allows her victory to stand.

The Court has already laid the doctrinal framework for a decision overturning the 2024 election

So what would a Supreme Court decision overthrowing the 2024 election look like? Most likely, it would look like a 2020 court dispute out of Pennsylvania.

During the pandemic, the Pennsylvania Supreme Court ruled that certain ballots mailed before Election Day would be counted even if they did not arrive at an election office until up to three days after Election Day. Though the US Supreme Court has the final word on questions of federal law, each state’s highest court has the last word on questions of state law. So the Pennsylvania court’s decision should have been final because it was rooted in that court’s interpretation of Pennsylvania state law.

Nevertheless, the Republican Party asked the Supreme Court to reverse the Pennsylvania court’s decision and order these ballots tossed out, and several Republican justices urged their Court to do so. Ultimately, the Court dismissed the case as moot — Biden won Pennsylvania by a large enough margin that it wouldn’t have mattered what happened to these ballots.

Since then, the Court handed down its decision in Moore v. Harper (2023), a case in which the justices claimed a new power to overrule a state supreme court’s interpretation of the state’s own election law. Though Moore was largely viewed as a victory for voting rights because it rejected a very aggressive attempt to eliminate voter protections enshrined in state constitutions, the Court’s opinion includes an ominous line stating that the US Supreme Court may overrule a state’s highest court’s decision impacting a federal election if the state decision “exceed[s] the bounds of ordinary judicial review.”

The Court did not define this phrase — it just left it dangling out there as a warning that the justices may exercise a new and unprecedented power to swing elections at some point in the future.

In any election, there will be some disputes about which ballots are counted, whether certain polling places should be kept open late, and other routine legal disagreements that are typically resolved by state courts without too much drama. Now, however, a Republican-controlled Supreme Court claims the power to overrule any of these decisions, and potentially to rewrite a state’s own election law.

If the justices decide to overturn the 2024 presidential election, in other words, they have given themselves a powerful new tool that they can use to find reasons to do so.