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After a chaotic month of waiting and fraudulent accusations, one of the two candidates wins the US presidential election thanks to a court ruling. This is the nightmare that plagues many Americans: after a close election with a record turnout, the judges may finally decide.
There are two reasons why this bad dream cannot be dismissed as a fantasy: first, it was exactly the same in the 2000 election; secondly, the lawyers are already preparing for this scenario in view of the foreseeable tight outcome.
Accusations of savage fraud, threats of legal action and demands for a recount – all of this happened just hours after the last polling stations closed, before the votes were counted everywhere. US President Donald Trump has already declared himself the winner, his Democratic challenger Joe Biden was also confident of victory but warned to wait for the count. Given the tight results, a tough bickering seems almost inevitable in the coming weeks.
The power of the courts
The courts cannot rule on the outcome of the elections, not even the Washington Supreme Court. Judges are not responsible for reviewing the results. However, local courts or higher-level instances can decide on the legality of the terms, the counting rules or the validity of the results.
There are a lot of complaints in the United States. In the vast majority of election years, when a candidate has a big advantage, one or two lawsuits may not affect the election outcome. Given the predictable tight results in states like Wisconsin, Michigan and Pennsylvania, this year may be different. Due to the majority vote, a candidate can theoretically secure a state with one vote.
People of Michigan: “Stop the Counting”
Photo: REBECCA COOK / REUTERS
Trump has already talked about massive fraud on Wednesday ahead of the ongoing tally. “You can find votes for Biden everywhere: in Pennsylvania, Wisconsin and Michigan. So bad for our country,” he tweeted:
According to experts and studies, election fraud is extremely rare in the United States. Twitter immediately issued a warning to many of Trump’s messages and thus also limited the ability to spread the tweets.
Trump’s campaign team announced it would require a recount of votes in Wisconsin. In Michigan, they filed a lawsuit to stop the count. Same in Pennsylvania. In the three states together, the votes of 46 voters are given. A candidate needs 270 votes to win. Biden appears to be leading, but he should be close. Republicans have also filed a lawsuit in the state of Georgia.
Request donations for legal fees
Senate Republican Majority Leader Mitch McConnell said he found Trump’s announcement to continue the election campaign in court unproblematic. If the election result was close, “it happened before and it could happen this time too,” Trump’s confidant said. “Going to court is how we resolve uncertainties.”
The Democrats immediately solicited donations for legal fees. They were “ready to fight back” after Trump’s threats, Biden runner-up Kamala Harris wrote on Twitter. “Our work could go on for weeks and we need your help,” reads the appeal for donations.
Democrats and Republicans had hired numerous lawyers before the election. Some lawsuits are likely to be appealed by all courts and could end up in the Washington Supreme Court. Trump has a home advantage there: six of the nine life-appointed judges are considered Conservatives, three of whom the Republican himself has nominated.
Supreme Court in Washington DC
Photo: J. Scott Applewhite / AP
Some complaints about the election had already reached the judges before the vote, mostly on rather technical issues. One question was, for example, whether a deadline for accepting ballot papers could be changed by a court or only by the parliament of the state concerned.
There was no clear trend towards party membership in the judges’ decisions. Conservative judge Amy Coney Barrett, who was only appointed at the end of October, abstained from several decisions. When they decided to accept the Pennsylvania postal ballots after election day, the judges expressly reserved the right to eventually address the issue of voting again.
Remembering the 2000 elections
This is a nightmare for some observers: what if Biden Pennsylvania briefly wins with the help of late postal votes? If the judges quash the votes, Biden would lose the state’s 20 voters and possibly the election.
It’s a hypothetical scenario, but it’s not made out of thin air: it was similar in 2000. Whether George W. Bush or Al Gore would become the next president at that time depended only on the outcome in the populous state of Florida.
Al Gore and George W. Bush: Duel for President in 2000
Photo: JOHN MOTTERN / AFP
The legal battle over the outcome and the reports dragged on for a month before the Supreme Court. After that, Gore admitted defeat. Republican Bush won by 537 votes, secured the votes of the Florida electorate, and became president of the United States.
Lawsuits could deepen divisions in the country
Even before the election, Trump said he could only lose if there was “massive election fraud”. It therefore seemed impossible for him to admit defeat without a fight. It will have any lawsuit. The United States has therefore been under threat for very agitated weeks due to the virulent coronavirus pandemic. The division of the country into two rival political camps is likely to deepen and protests could also arise.
The hanging game could drag on for about a month: states must certify final results by December 8 and report them to Washington. This period, known as the “safe haven”, was crucial, for example, in 2000, when Gore decided to admit defeat.
If the dispute continues beyond the deadline, it could get quite complicated. So Americans shouldn’t really breathe a sigh of relief until next year: the next president will have to be sworn in on January 20, according to the law.
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