What if the Supreme Court has to become involved in the election?

What if the Supreme Court has to become involved in the election?
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The Supreme Court decision in the historic case of George Bush versus Al Gore casts a long shadow, which is ironic given that the justices expressly tried to limit its reach to the circumstances in the 2000 election. But here we are two decades later on the cusp of an election for which the results seem contested even before votes have been cast.

One candidate, Donald TrumpDonald John TrumpBiden leads Trump by 36 points nationally among Latinos: poll Trump dismisses climate change role in fires, says Newsom needs to manage forest better Jimmy Kimmel hits Trump for rallies while hosting Emmy Awards MORE, continues to assert the claim that, as the result of more mail ballots in the midst of the coronavirus pandemic, we will “never know who won the election.” We already know that Russia has again launched efforts to interfere with the election. The likely litigation over counting votes this time around may make debates and arguments about hanging chads seem fanciful by comparison.

Challenges to the results in November are one reason why we should pay attention to the case of the 2000 election. Though it has been scrutinized over time, it remains a cloudy decision. It is not clear whether it stands for anything other than the results, which stopped the Florida recount and led to the election of Bush. It also is not clear what motivated a majority of the justices to commit to the case in the first place, since the determination of who will be the next president for the United States is not the kind of issue the framers imagined the Supreme Court would decide. Indeed, as Justice Stephen Breyer noted in his separate opinion, the 12th Amendment grants Congress the authority and responsibility to count votes.

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These questions are related. What the decision in 2000 means is tied to an explanation for why the majority believed it had to rule on the case to start with. That explanation is fear, not necessarily of victory by Gore, but rather of the possibility, if the House of Representatives was not up to the task of sorting out the election dispute, that any win would be seen by a significant portion of Americans as illegitimate, which could in turn lead to a constitutional crisis. As former federal appeals court judge Richard Posner declared, had the Supreme Court allowed the Florida recount to resume, “what could have ensued is fairly described as chaos.”

It is only with hindsight that we can say with any certainty that, if it was a fear of disorder that motivated the majority of justices, then the republic probably was not in grave danger. Following the Supreme Court decision, Gore conceded then Bush took the office without incident. Further, today we have a better understanding of the ways in which a contested election could truly lead to disorder and even chaos, like when one candidate has shown time and again that there is literally no governing norm or federal guideline he would not break if it served his own interests.

It would be difficult to believe that Chief Justice John Roberts, a student of the Supreme Court itself, does not suspect that he may have a role to play in the election this year. He displays a shrewd understanding of where the Supreme Court stands in history and the extent to which that depends on the public viewing its work as valid. That legitimacy is the currency of the Supreme Court, and it is fueled primarily by a respect for precedent in the ability to show in a case that it is not breaking new ground.

Should the Supreme Court be asked to address any disputes for the next election, such as how mail ballots must be counted, it will need to tap into the respect that Americans have for it and the reputation it has earned. At the very least, the justices can point to the 2000 to show that such legal intervention is not unprecedented. If that decision stands for anything, it is for the proposition that there may be a time when its involvement in an election, however unusual, is justified to prevent a genuine possibility of civil unrest and to preserve our democratic institutions.

Lawrence Friedman is a professor at New England Law in Boston, where he teaches constitutional law. He is the author of “Modern Constitutional Law.”