During Donald Trump’s Presidency, we have called political events “constitutional crises” far more often than in any period in memory. Before 2016, the term was used rarely, and the last time there was concern about a possible constitutional crisis was in the aftermath of the Presidential election of 2000, which culminated in the Supreme Court’s Bush v. Gore decision, more than a month after Election Day. As we approach the decision’s twentieth anniversary, with a President who has promised to take the election results to the Court, we may be facing a possible repeat of those events—and perhaps a genuine constitutional crisis around the Presidential election, which could prove much more chaotic and difficult to resolve.
A constitutional crisis is not merely an instance of the Constitution being disobeyed or going unenforced. It is, rather, a much more confounding situation, in which two branches of government are in an active conflict with each other but our constitutional rules and norms do not tell us how to resolve it. There was a true constitutional crisis around the Presidential election of 1876, when neither Samuel J. Tilden, a Democrat, nor Rutherford B. Hayes, a Republican, won a majority of the Electoral College. (Tilden won the popular vote.) In Florida, South Carolina, and Louisiana, where vote counts were close and products of manipulation, rival Democratic and Republican electors attempted to get Congress to recognize their votes. To end a months-long political conflict, which was marked by intimidation, disenfranchisement, and threats of violence, Congress appointed a bipartisan electoral commission, consisting of members of each house and the Supreme Court. The commission reached an ugly compromise, to withdraw federal troops from the South, effectively ending Reconstruction, in exchange for awarding the disputed states’ electoral votes to Hayes, who became President.
No electoral conflict approached the level of that of the 1876 election until 2000, when, as many recall, the Presidency came down to the vote count in Florida, which was too close to call and spawned recounts in several counties. Three weeks after Election Day, while recounts were still ongoing, Florida’s Republican secretary of state, Katherine Harris, certified a win, by a margin of five hundred and thirty-seven votes, for George W. Bush, handing him enough Electoral College votes to win the Presidency. Al Gore then sued in Florida court to request that the recounts continue. On December 8th, the Florida Supreme Court ordered a statewide manual recount of “undervotes,” ballots for which the machine count had not recorded votes because of so-called hanging chads. Bush immediately asked the U.S. Supreme Court to reverse that decision. The Court held that recounting only “undervotes” and failing to have uniform standards for counting contested ballots violated the Equal Protection Clause of the Fourteenth Amendment, with seven Justices agreeing on the merits. Over the dissent of the four liberal Justices, the Court’s majority also ordered an end to the recount, rather than sending the case back to the Florida court to establish acceptable standards. This remedy fuelled the widespread belief that the Court decided the Presidential election: it meant that Harris’s previous certification of Bush as the winner in Florida would make Bush the President-elect.
Gore accepted the Supreme Court’s decision and conceded the election to Bush. If he had not stood down and had instead pressed a claim to the Presidency, perhaps by returning to Florida courts to ask for a new and improved recount and urging Democrats to reject the Court’s resolution of the matter, then we might have been headed for a genuine constitutional crisis. Many found it unseemly, and even outrageous, for a Presidential election to be resolved by the Supreme Court, particularly when the Justices were divided sharply, five-to-four, along partisan lines. But, in retrospect, the Court’s order, when coupled with Gore’s response—and the public’s acceptance of it—insured that a crisis was avoided. The following year, a review of the ballots by a consortium of news organizations found that Bush would have won narrowly even if the Court had allowed the Florida recount to continue.
This fall, myriad cases about states’ voting arrangements—including the swing states of Arizona, Florida, Georgia, Iowa, Michigan, Minnesota, Nevada, North Carolina, Pennsylvania, Texas, and Wisconsin—have created an unnerving sense of legal cacophony as Election Day approaches. But, so far, the legal fights have been contentious but resolvable conflicts about access to voting, given concerns about the dangers of in-person voting and the delays in the postal system. The battles have been about deadlines for registering to vote, mailing ballots, and receiving ballots to be counted, and about who may vote absentee, distribute absentee-ballot applications, collect ballots, or serve as poll-workers. There have been questions about electronic-ballot delivery, curbside or drive-thru voting, openly carrying firearms at polling places, and even about whether voters must wear masks. (The Fifth Circuit left in place the Texas governor’s polling-place exception to his statewide mask mandate, after Democrats challenged it as a discriminatory burden on Black and Latino voters, who are more likely to be harmed by the coronavirus and to face long lines at the polls.) In general, the cases have reflected an acceptance, by both Democrats and Republicans, that increased voting is likely to benefit Democratic candidates. In some states, officials have attempted to make voting easier or safer, and Republicans have sued to have those moves declared unlawful. In other states, officials have attempted to limit voting options, sometimes citing the risk of fraud, and Democrats have sued to object to those restrictions. State and federal courts have been adjudicating these conflicts case by case, and litigants have been recognizing the courts’ orders, despite extreme partisan disagreements about their merit.
More than fifteen of these cases have reached the Supreme Court, where the results so far, in the form of unsigned orders, have been about evenly split between favoring Democrats and favoring Republicans. Last week, the Court left in place the North Carolina Board of Elections’ decision to extend the state’s deadline for receiving absentee ballots from November 6th to November 12th. Three conservative Justices—Clarence Thomas, Samuel Alito, and Neil Gorsuch—dissented, with the latter two explaining that because the elections clause, in Article I of the Constitution, says that the “legislature” prescribes the “times, places and manner of holding elections,” it was unconstitutional for the state’s Board of Elections to alter the deadline that the state legislature had set. This theory depends on the questionable assumption that the legislature had not validly delegated authority regarding deadlines to the Board of Elections under state law—an assumption apparently not shared by the majority, which was silent on the reasons for its order. The Court also denied, without dissents, Republicans’ request for expedited consideration of whether the Pennsylvania Supreme Court acted unconstitutionally in extending that state’s deadline for receipt of absentee ballots from November 3rd to November 6th. But Thomas, Alito, and Gorsuch did note Pennsylvania officials’ intent to segregate the ballots received after Election Day, and suggested that the Court might well consider the case and eventually order that those votes not be counted. The conservative Justices’ comments effectively invited Republicans to demand that ballots eligible voters have cast, relying on the rules and procedures that the state gave them, be thrown out, in order to remedy an alleged constitutional violation by a branch of state government.
In recent weeks, the Supreme Court decided against Democrats in Wisconsin, rejecting a federal district court’s decision to extend the state’s deadline for receiving absentee ballots from November 3rd to November 9th. The Court also allowed Alabama’s secretary of state to ban curbside voting, in which voters in cars would have handed their ballots to poll workers, and allowed South Carolina and Alabama to require a witness’s signature on a voter’s absentee ballot. If there is a pattern to these decisions, it is that the Supreme Court is leaving states to determine their own election rules and rejecting federal courts’ modifications of them. That means that ballots that arrive after Election Day will be counted in some states but not in others, a disparity that is discomfiting though perhaps not unconstitutional. Any pattern, however, predates the participation of Justice Amy Coney Barrett, who was sworn in just days before the Court’s decisions on North Carolina and Pennsylvania and opted not to take part in them. Barrett could side with Thomas, Alito, and Gorsuch in the position they took on Pennsylvania’s absentee ballots, but the Chief Justice likely would not, and he could conceivably pick off another conservative colleague to make a majority.
The possibility that candidates may seek to flip narrow vote margins in swing states through court rulings on how to count ballots revives memories of Bush v. Gore and raises the prospect of the Court once again playing a decisive role in the election. Justice Antonin Scalia, who once famously told critics of Bush v. Gore to “get over it,” said on CNN, in 2012, that, once the litigants came to the Court, “the only question” to be decided in the case was “not a hard one”: “whether the Presidency would be decided by the Florida Supreme Court or the United States Supreme Court.” Of course, the Supreme Court can’t decide the election if the parties don’t take their disputes to court. But there is little chance of Trump not asking the Court for a decision, given his statement that he wanted Barrett seated by the election because “I think this will end up in the Supreme Court.”
Bush v. Gore’s famous disclaimer—that the Court’s “consideration is limited to the present circumstances”—has often been read to mean that it was not intended to have value as precedent. But Justice Brett Kavanaugh favorably cited Bush v. Gore in his concurring opinion in the Wisconsin absentee-ballot deadline case, in order to underline “the important federal judicial role in reviewing state-court decisions about state law in a federal Presidential election.” This statement raised alarms that at least some conservative Justices are prepared to second-guess state-court decisions on state election law to Trump’s benefit, much as the Court reversed the Florida Supreme Court’s recount decision and decided the 2000 election for Bush. (It happens that Kavanaugh, Barrett, and Roberts all worked as lawyers for Bush in the election litigation in 2000.) The Court has already agreed to hear a case about the lawfulness of Arizona’s refusal to count provisional ballots cast in person on Election Day outside of the voter’s own precinct, and its limitation on who may collect a voter’s early ballot. As soon as this week, we may also see emergency requests in vote-count cases reach the Court. But, if Bush v. Gore stands for any real legal principle that could come into play in the disputes, it is that a state may not use counting methods that are arbitrary, non-uniform, or unclear, nor treat similarly situated voters differently. Even those who have reviled the case for twenty years shouldn’t assume that this principle must favor Republicans; in fact, it could well be used by Democrats to challenge state vote-counting irregularities if needed.
It is difficult not to fixate on Tuesday, November 3rd, as the day when we elect the next President. But our votes on Tuesday technically do not decide the Presidency; rather, they decide the makeup of the Electoral College, which will meet on December 14th for the state electors to vote. The President will not be officially chosen until January 6th, when, according to the Twelfth Amendment, Vice-President Mike Pence, as President of the Senate, will preside over a joint session of Congress, where he will “open all the certificates and the votes shall then be counted.” Much could go wrong in any of those intervals, and chaos may ensue, in the counting of votes, the certifications of results, the appointments of electors, and congressional agreement on the winner. A federal statute enacted in the wake of the election crisis of 1876 says that if a state makes its “final determination of any controversy or contest concerning the appointment of all or any of the electors” by December 8th, then Congress must treat the electors’ appointments as “conclusive.” (This is known as the “safe harbor.”) But, in a recent paper, my Harvard Law School colleague Cass Sunstein concluded that, even so, federal law “almost certainly allows Congress to refuse to count votes that are a product of fraud.” If Trump alleged that Joe Biden had fraudulently won a state and urged Congress to reject a state’s electoral votes, then, as Sunstein writes, “we could easily imagine real chaos in Washington.” Should Congress arrive at an impasse over how to count the Electoral College votes, then that scenario would certainly rise to the level of a true constitutional crisis.
A constitutional crisis can be an early stage on the road to constitutional failure. The ultimate failure of a constitution is, of course, civil war. The possibility of violence haunts the coming days and months, particularly in light of polls that show that at least a third of Americans, both Republicans and Democrats, believe that violence is justified if the other party’s candidate wins the election. In the battleground state of Texas, on Friday, Trump supporters in trucks surrounded a Biden campaign bus on the highway, and Trump tweeted a video of it with the comment “I LOVE TEXAS.” Storefronts in major cities across the country have been boarded up in preparation for Election Day mayhem.
The 2000 election ended in crisis aversion, when Democrats made a difficult decision to swallow a bitter pill rather than fight on after the Supreme Court rendered its decision. But since then, and particularly after the past four years, there is far more animosity among citizens and far less public confidence in our democracy, the rule of law, and the Supreme Court. This time, many appear ready to take conflict to the streets. Some of those who are primed to feel robbed and cheated have guns, and the man who will remain President for at least several more months may stoke unrest and dispatch unwelcome federal force into states in response to protests. Though the Supreme Court might view itself as providing resolution in disarray, any major election-related decision is less likely to calm than to fuel social conflict. Should combustible events following this election ultimately require one of the parties to act in order to avert a crisis, Biden is overwhelmingly more likely than Trump to call on his broader sense of duty to do so. Understanding this, too, is a reason to hope that Biden will win a clear path to the Presidency, and that the coming days do not take us to the brink.
