On the Supreme Court Deciding the Presidential Election

 

On the Supreme Court Deciding the Presidential Election

October 13, 2020

 

President Donald Trump has said, without any justification whatsoever, that the 2020 presidential election will be decided by the courts. The 2000 presidential election was decided by the US Supreme Court, although how it decided that election is often badly misunderstood. In a perfect world the courts would have nothing at all to do with elections. Elections in this country are conducted by the states or by a subdivision of a state like a county or a city. There are federal laws that apply to elections, most importantly the Voting Rights Act of 1965; but elections are primarily conducted by the states not by the federal government. In theory the legislatures of the states and the proper election officials have set up fair and effective election processes and procedures that function properly with no involvement of any court whatsoever. A court becomes involved in an election only if some person or entity that is a legal person (like perhaps a candidate’s campaign organization) believes that an election has been conducted in a way that in some particular violates applicable law. The applicable law would probably be the state law of the state where the election took place or the federal Voting Rights Act of 1965. A person who believes that they have been disadvantaged by some improper aspect of an election may file a civil (i.e., not criminal) lawsuit in the appropriate court seeking some kind of judicial relief, probably an injunction against whatever it was that the court finds to have been improper. That’s how a court can become involved in deciding an election.

Courts of law exist primarily to do two things, determine the outcome of criminal cases and try civil cases to resolve non-criminal disputes between parties to a lawsuit. Such a lawsuit begins when someone with legal standing to do so files pleadings called a summons and complaint in the appropriate court. In the United States there are several different systems of courts with different jurisdictions that are authorized to hear different types of cases. The two basic and most important ones are the federal courts and state courts. Because President Trump has said that the 2020 presidential election will be decided by the US Supreme Court, we are concerned here with federal courts. The US Supreme Court is the highest of the federal courts. That statement by the president may actually mean nothing, but he did say it. So the question arises of just how the federal courts might become involved in the upcoming election.

To understand the role any federal court could play in deciding a presidential election we must first understand the particular types of cases a federal court may hear. The federal courts are what is called courts of limited jurisdiction. That means that they may hear only those types of cases which the US Constitution or other federal law specifies that they may hear. There are several different kinds of cases the law gives federal courts authority to hear, but the two most important are what is called diversity jurisdiction and what is called federal question jurisdiction. Diversity jurisdiction provides that the federal courts may hear civil cases between citizens of different states that are for the recovery of money in which the amount of money at issue exceeds $75,000.00. Diversity jurisdiction does not include cases between citizens of different states brought under state law for what is called injunctive relief, that is, a case in which the plaintiff wants the court to order another party either to do or not to do some specific thing. These cases do not fall under diversity jurisdiction because there is no amount of money at stake. A party to an election wishing to file a lawsuit in federal court alleging some improper action by state election officials would have to invoke a federal court’s federal question jurisdiction. In other words, they would have to raise a question of federal law rather than state law.

Both state and federal court system have different levels of courts. The basic court in both systems is usually referred to as the trial court. In the federal system the trial court is called  The United States District Court of some specified area. Where I live the federal trial court is the United States District Court for the Western District of Washington. A person with standing, that is, a person with the legal right to bring the lawsuit that person has brought, who wanted to base a lawsuit relating to an election in western Washington on a violation of federal law would file the case in the District Court for the Western District of Washington. There are two layers of federal courts above the District courts. The first level up from the District court is The United States Circuit Court of Appeals for a particular circuit. The country is divided up into several different circuits for the purposes of the Circuit Courts of Appeal. Where I live the relevant Circuit Court of Appeals is the Circuit Court of Appeals for the Ninth Circuit, the Ninth Circuit being primarily the western part of the United States. The second level of court above the District courts is the United States Supreme Court. There is no appeal from a decision of the Supreme Court because there is no court above it in the system. Its decisions are binding on all other courts.

A party who thinks the District court has made some legal error in the party’s case that adversely affected that party may file an appeal. In the federal court system appeals are almost always filed in the relevant Circuit Court of Appeals. Every party has an absolute right to an appeal to the Circuit Court of Appeals, although that court may impose sanctions if a party has filed a frivolous appeal. A party to a case that has been heard on appeal in a Circuit Court of Appeals may ask the United States Supreme Court to review the case and reverse the decision of the Circuit Court of Appeals. There are different ways that a case may come before the Supreme Court, but the most common way is by what is called a petition for a writ of certiorari. If the Supreme Court does what lawyers always call granting cert the case comes before the highest federal court. In most cases whether or not the Supreme Court accepts review of a case is entirely within the discretion of the Supreme Court, though the Court has said many times what it considers to be aspects of a case that support granting cert such as an important question of federal law that affects a large number of people or where a case involves an important question of law that different Circuit Courts of Appeal have decided differently. Most petitions for cert are denied, which means that the decision of the Circuit Court of Appeals becomes the final decision in the case. The Supreme Court would almost certainly grant cert in a case about the presidential election because the outcome of the case would affect every American and would have to be decided quickly. On very rare occasions the Supreme Court may grant cert in a case directly from a trial court, bypassing the Circuit Court of Appeals. A case involving the election of a president might well be such a case because it would be a case for the same reasons that would lead the court to grant cert at all.

Appeals of trial court decisions almost always involve only questions of law not questions of fact. One of the primary roles of the trial court in the court system is to determine what the facts of a case are. An appellate court will virtually never change the trial court’s determination of the facts of the case. A simple example (that would be unlikely to come up in a federal case, but never mind) would be a traffic accident case in which the plaintiff says the stoplight was red and the defendant says the stoplight was green. If the outcome of the case depended in any part on the color of the stoplight that trial court would decide that issue. The decision of a question of fact like that would be decided by a jury if there was one or by the judge presiding over the trial if there was not. Unless there were no evidence in the record of the trial to support the court’s decision of that question of fact all appellate courts will accept the trial court’s finding as the facts of the case.

Appellate courts deal primarily with questions of the law applicable to the cases before them. It is often unclear just what law applies to a particular case or what a law that everyone recognizes applies to the case means when applied to the facts of the case. That’s what appellate courts decide. Some of decisions of the United States Supreme Court that determine important question of law are quite famous. Roe v. Wade is a classic example. In that case the US Supreme Court held that the United States Constitution guarantees a woman the right to an abortion. That holding is the decision of a question of law, the law being the Constitution and the question of law being whether a state may ban or restrict the medical procedure of an abortion to end a pregnancy. The Supreme Court held, roughly speaking, that it may not because of the provisions of the US Constitution. Most appellate cases, including those at the Supreme Court level, never get anywhere as well known as Roe v. Wade nor anywhere near as controversial. A decision in a case about the presidential would of course be well known and almost certainly controversial at least for a while.

In theory the Supreme Court would decide only the legal issues in the case that the parties to the case raise for the court’s consideration. In theory the Supreme Court’s role would be only to decide what the applicable law is and how it applies to the case before the Court. In theory the Justices’ personal political preferences would play no role in the case. It is, in theory, not legitimate for any court to decide any case on the basis of the judges’ political convictions or personal preferences. The court’s job is to determine what the law is and to apply it to the case before it. We all know, of course, that courts rarely  function that purely. It is hard to avoid the conclusion that the Supreme Court decided Bush v. Gore the way it did because a majority of the justices wanted George W. Bush and not Al Gore to win the election.

That’s how it can go with legal appeals. Everyone involved knows how the system is supposed to work, and everyone involved knows that it often doesn’t work that way at all, although judges of course will rarely if ever admit that they did anything improper like decide a case on the basis of their personal preferences. The political preferences of the justices of the Supreme Court could become decisive if the outcome of the 2020 presidential election comes to depend on a decision by that court. Especially if Judge Barrett is confirmed by the time a case about the presidential election comes before the Court, which she almost certainly will be, the big conservative majority on the Court may well want Trump to win, and that desire may skew the outcome of the case. It’s not supposed to work that way, but often it does. Courts are human institutions, and judges are human beings. There’s nothing perfect about either the system or the judges. A Supreme Court decision about the presidential election doesn’t necessarily mean that the Court has overruled the voters, as the liberal media so often says it would. Still, this presidential election like all elections must be decided by the voters under proper and properly applied election law. That’s the only way the result can be legitimate. A legitimate result may or may not involve the Supreme Court. We can only hope and pray that whether it involves the Supreme Court of not it comes out that way it should under applicable law.