Among the many strange and worrying truths about American elections, one has a tendency to get lost: The path to the presidency can run not just through battleground states but also through the Supreme Court.
Back in 2000, it was the Supreme Court in Bush v. Gore that put an end to a month-long post-election battle between the Democrat Al Gore and the Republican George W. Bush over who would be awarded the state of Florida’s Electoral College votes and, in turn, the presidency. This time, were the outcome of the 2020 election to fall to the Court, the situation could be far messier, and at stake would be the legitimacy of both the Court and the entire American electoral process.
The Supreme Court already plays an outsize role in policing the American election process, compared with the role played by high courts in other advanced democracies in setting rules for political competition. Despite the Court’s decision last year in Rucho v. Common Cause to keep federal courts out of the business of limiting partisan gerrymanders, the Court has been enmeshed in the political thicket for decades.
The U.S. Constitution, unlike newer constitutions from similar countries, does not contain many election ground rules. Instead, it has general language, such as in the Fourteenth Amendment, which guarantees “equal protection of the laws.” The Supreme Court and lower courts have used the constitutional text as a hook to decide some basic issues, such as whether election districts need to have roughly equal numbers of people to assure fairness in voting power, and whether the government can require people to disclose their identities when they spend money to influence how others vote in elections.