In 2000, a 5-4 US Supreme Court decision on the Bush vs Gore case ended the recount of ballots in Florida, and George W Bush won Florida — by a meagre 537 votes, a margin of 0.009% — and the presidency of the US. Twenty years on, the US election may again be heading towards multiple legal battles.
President Donald Trump has already filed lawsuits in swing states Pennsylvania, Michigan and Georgia. Even in the early hours of Wednesday US time morning, he had tweeted, ‘We are up BIG, but they are trying to STEAL the election’. There is, however, a remarkable difference between ‘Bush vs Gore’ and ‘Trump vs Biden’ — nobody alleged the ‘stealing’ of the election in 2000. This time around, the president himself has launched an attack on the democratic system of his country. While at the time of writing vote-counting was still underway in many states, and millions of mail-in ballots were yet to be counted that could dramatically change the outcome in different states, Trump declared his ‘victory’ despite no evidence that he had won the election. Any suggestion that he had lost, he termed ‘a fraud on the American public’.
When the Bush campaign asked the US Supreme Court to halt the Florida recount, Justice Antonin Scalia urged his colleagues to grant the stay immediately. Scalia cited ‘irreparable harm’ that could befall Bush by casting ‘a needless and unjustified cloud’ over his legitimacy. In his dissent, Justice John Paul Stevens wrote, ‘…counting every legally cast vote cannot constitute irreparable harm’. He added, ‘To stop the counting of legal votes, the majority today departs from three venerable rules of judicial restraint that have guided the Court throughout its history.’
In the run-up to this year’s election, on multiple occasions, Trump refused to commit to a peaceful transfer of power if he lost. There are, indeed, loopholes in the system. For example, after the death of Justice Ruth Bader Ginsburg, Trump nominated Justice Amy Coney Barrett in the US Supreme Court only 39 days before the election. The Republican-dominated Senate expedited her appointment in an unprecedented way.
Barrett being appointed made the ratio of Republican president appointed and Democrat president appointed justices in the Supreme Court 6:3, three being appointed by Trump himself. Despite much criticism, however, US rules put such action well within the provision of Trump’s legal right. With a 6:3 skew in the Supreme Court favouring the Republican Party, the Trump camp can find it more ‘comfortable’ to file lawsuits than the Democrats. However, with top lawyers on each side, their outcomes will be known only later.
Whoever becomes the 46th US president, the present election will throw up a less ‘stable’ verdict for sure. When the president himself declares that he wants ‘all voting to stop’ and that ‘we don’t want any ballots to be found at four in the morning’, confidence is already seriously undermined in the ultimate legitimate result — even if Trump wins.
Injecting disinformation through the US mainstream media’s bloodstream can be more impactful than alleged ‘foreign interference’ or social media. American institutions — and the democratic system itself — seem undermined to the common American citizen, and may sow more discord in an already polarised landscape in the days, weeks and months to follow.
The writer is professor of statistics, Indian Statistical Institute (ISI), Kolkata