For those of a certain age, it seems hard to believe that twenty years have passed since the infamous, closely counted 2000 Presidential Election. After weeks of talk about hanging chads and a flurry of legal activity, the United States Supreme Court brought finality to the election with its December 12, 2000 decision in Bush v. Gore, stopping a recount ordered by the Florida Supreme Court only four days earlier. As a result, the earlier determination made by the Florida Secretary of State stood, and George W. Bush became the country’s 43rd president.
As Election Day 2020 unfolds, several election law skirmishes have already found their way to the U.S. Supreme Court’s doorstep. Less than a week ago, the Court declined the invitation to expedite its review process for a challenge to a Pennsylvania Supreme Court decision that allowed additional time to count ballots posted by election day. The same day, the Court allowed to stand lower court decisions that permit the North Carolina state board of elections to extend the window to count absentee ballots. In the Pennsylvania case, Justice Alito made clear that the Court may revisit the legal issues presented under its normal timeline (i.e., after Election Day).
Why all the confusion over elections? Putting aside politics, much of the confusion stems from a lack of uniformity in state election laws. While the United States Constitution outlines the requirements for candidates for federal office, it expressly delegates the task of setting “the times, places and manner of holding elections” to the legislature of each state. As a result, the federal election process involves a curious combination of state and federal law. Who decides what any given state’s election legislation means or requires? Normally, the ultimate authority on state law is that state’s supreme court. But what if the decision by the state’s supreme court (as was alleged in the Pennsylvania case) undercuts the constitutional requirement that the legislature sets the rules? Now you have a federal constitutional question, and the United States Supreme Court makes the call.
Still confused? That’s fair. As the saying goes, “It’s complicated.” Here’s to the hope that, whoever wins today’s contest, the final results will be known well before December 12 this time around!