US election 2020: Two scenarios that are likely to play out if Donald Trump takes fight to SC

A controversy is rapidly unfolding in the United States. In what is being dubbed by political commentators as the election of the century in the United States, with the largest voter turnout in a century, the process of counting the votes and declaring the result could take days if not weeks. Things are further compounded by the Covid-19 pandemic, which meant that a significant number of citizens voted by mail-in-ballots. Postal ballots, by their very nature, require a lot more time to count than traditionally cast votes. Post needs to be received, physically opened, verified, signatures matched, and then counted. Added to this complexity is the issue that some states have a system whereby mail-in-ballots are only counted when the officer in charge of counting takes a break from counting regular votes. To count the total votes required to arrive at a majority could take days or even weeks. It is imperative to note that recently on 28 October, the US Supreme Court had, in the matter of Republican Party v. Kathy Boockvar, denied the Republican Party’s request hearing a matter related for expedited counting of votes, and allowed the absentee ballots to be counted several days after the election day. Nonetheless, only a few hours into the counting process, President Donald Trump has claimed that the Republicans had ‘won’ the election. Further, he claims that “…a fraud has happened” due to which he is preparing to move the US Supreme Court to presumably obtain an injunction against the counting of new votes, which possibly will be mail-in-ballots. Using the presumable element of fraud in the process of the election, President Trump continues the narrative of the possibility of “rigged” or manipulated elections and therefore, this matter is destined to be settled by the US Supreme Court rather than by voters. This controversy that is unfurling presently gives two main points of consideration. Firstly, how will the US Supreme Court exercise their original jurisdiction to hear the President’s claim; and second, when they eventually hear the matter, how will the Supreme Court determine this matter? By virtue of their constitutional provisions, the court exercises original jurisdiction over cases which involve two or more states, or cases involving ambassadors or other public ministers. In the event that President Trump manages to convince the Supreme Court judges to adjudicate on the matter at the first, it would be a radical departure from the established procedures, precedents and practices.

A disingenuous way to overcome this drawback of original jurisdiction could be to convince two or more States under the Republican Governorship to move the Supreme Court against the counting of votes and there is no lack of diversity of reasons to counsel against that. Whichever way this issue swings, the likelihood of the Supreme Court ruling on the question of counting of votes at the first go seems remarkably slim and without any precedent to peg their decision on.

As to the second scenario, there are at least three possible ways this matter will turn out. First, President Trump might file a test case before one of the State Courts, alleging voter fraud, and then appeal the decision before the US Supreme Court. In such a case, the question would be firstly, whether a writ of certiorari will be granted or not. Against this backdrop, it is important to recall that President Trump has replaced the recently deceased Justice Ginsburg with characteristic undue haste, naming Justice Barrett as her successor. With her appointment the court now consists of 6 justices appointed by the Republicans. For a writ of certiorari to be granted, and consequently a matter to be heard on merits, it needs only four judges to sign off- a number likely to be met. Second, if the writ of certiorari is granted and the Supreme Court hears the matter, they have the option of refusing to enter the ‘political thicket’. For a matter not to be a political question, the controversy before the Supreme Court, among other things, needs to framed in a manner which highlights a constitutional commitment which is “textually demonstratable”; a remedy which is judicially discoverable and manageable; and, the need to question adherence to a political decision already made. The political questions doctrine does in fact provide wide leeway to the judges, which they can use to refuse entertaining any matter of political colour. However, given the partisan nature of the judicial appointment recently, it is highly improbable that the question of vote counting raised by President Trump does not manage to find a frame which doesn’t capture the essence of these political questions. Third, there can be a situation where the US Supreme Court uses the Bush v. Gore as a precedent and grants some relief to the incumbent President. In 2000, the contention was recounting of votes in Florida- a key state. Gore contended that 61,000 votes must be recounted- a contention supported by the Florida court. Bush approached the Supreme Court - seven out of the nine justices disagreed with this and allowed the votes to stand. This pushed Bush’s tally in the electoral college to over 270 seats- and in effect meant that he became President. The election has truly been one that has tested true values of democracy, rights, decency and political flair. To be tested in the courts will indeed put the SCOTUS itself on trial- to resolve the dispute and maintain public confidence. America, on so many occasions has described itself as one of the world’s greatest democracies. How this election turns out to be and the role of courts will put the claim to churning. The world is indeed watching. Raunaq Jaiswal is a faculty member at OP Jindal Global University. He holds a Master of Laws from the Central European University. Vishavjeet Chaudhary is a Delhi based Advocate specialising in criminal law and constitutional law