Today we answer this listener question: “It has happened before that in very close elections, the Supreme Court chose the winner. How does that happen?”
Our guest is Dan Cassino, Professor of Government and Politics at Fairleigh Dickinson University. He walks us through two times the Supreme Court or its Justices were directly involved in choosing the winner of a presidential race.
Transcript
NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.
Civics 101
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[00:00:03] By pushing to get it done before midnight, it sounds from what we can make of the decision, Rehnquist and the four others [00:00:10] who joined him awarded the presidency to George Bush. And just one other question that I want to go back to.
Nick Capodice: [00:00:14] This is Civics 101. I'm Nick Capodice.
Hannah McCarthy: [00:00:16] And I'm Hannah McCarthy.
Nick Capodice: [00:00:17] And that audio is from a late night in December in 2000 [00:00:20] when numerous reporters stood in the cold, reading the Supreme Court decision of Bush v. Gore on the courthouse steps, trying their best to analyze it as quickly [00:00:30] as possible.
[00:00:30] Sorry, Peter. We're still trying to work out what the other is... And I don't think anybody should be saying, nobody should be embarrassed about trying to work on a Supreme Court ruling on the fly.
Hannah McCarthy: [00:00:38] Today we are answering [00:00:40] this listener question. "It has happened before that in very close elections, the Supreme Court chose the winner. How does that happen?" How does [00:00:50] it happen?
Nick Capodice: [00:00:50] I'm going to start by saying that it rarely happens. Two times in U.S. history, so far, the Supreme Court or its justices were directly involved [00:01:00] with deciding the winner of a presidential election. And we'll talk about both of those times. But let's start with what happens when a state's vote count is disputed.
Dan Cassino: [00:01:08] So the big insight here, [00:01:10] the thing everyone has to understand is that elections, like polls, have a margin of error around them.
Nick Capodice: [00:01:15] This is Dan Cassino, professor of political science at Fairleigh Dickinson University.
Dan Cassino: [00:01:19] That is, and this [00:01:20] what we learned in the 2000 election, that if the race is close enough and by close enough, I mean that someone could theoretically say conceivably say, well, OK, but if you count the ballots this way, I won [00:01:30]. If it's to be counted this way, the other guy wins. So if you can get that margin, where they, where the change in how you're counting the ballots is going to affect the results at that point, [00:01:40] the election is a tie. And because of that, it is not going to result any more by the voters. It is resolved by elected officials and judges.
Hannah McCarthy: [00:01:49] When Dan [00:01:50] says elected officials, he means the secretary of state of that state, right?
Nick Capodice: [00:01:54] He does. And to be clear, the federal secretary of state deals with relationships with other countries. But in most states, [00:02:00] the state secretary of state is the one who deals with elections.
Dan Cassino: [00:02:03] In Bush v. Gore in 2000, the Supreme Court essentially said whoever the secretary of state says won the election, won the election, whether they actually won the election [00:02:10] or not.
Nick Capodice: [00:02:10] Bush v. Gore, 2000, which allowed the previous vote certification made by Florida Secretary of State Katherine Harris to call Florida for George W. [00:02:20] Bush. That is the only precedent we have to go on. And maybe we shouldn't even do that because it was what we call a narrow ruling. That term, by the way, has nothing [00:02:30] to do with how the justices voted. It means that the decision was written for as specific an instance as possible and that it is not likely to be used as precedent for future [00:02:40] cases.
Hannah McCarthy: [00:02:41] But what could get a state's vote to be challenged in court?
Dan Cassino: [00:02:45] If someone believes the secretary of state's actions are violating some important part of the Constitution, most [00:02:50] likely, probably the Fourteenth Amendment, which provides for equal protection under the laws. If you're treating people differently based on whose ballots you're gonna count, whose ballots are not being counted, well, in that case, you can sue. It's going to go to federal [00:03:00] court, to decide who the real winner is and how these things should be decided.
Hannah McCarthy: [00:03:05] You said there was a second time that the Supreme Court was involved. When was that?
Nick Capodice: [00:03:09] That was the election that [00:03:10] should be a whole podcast in itself, 1876 between Rutherford B. Hayes and Samuel Tilden. This dispute happened when the electors were chosen 40 days [00:03:20] after the election.
Dan Cassino: [00:03:21] When we had the electors come in, they registered their votes and Congress said, yeah, we think that was fraud here.
Nick Capodice: [00:03:27] So Congress put together a commission to decide [00:03:30] who got the electoral votes. And that commission included five Supreme Court justices. The commission also had one more Republican than a Democrat. Everybody voted on party [00:03:40] lines and they awarded those votes to Hayes.
Hannah McCarthy: [00:03:43] What does Dan think the process could be like here in 2020? Could it be another Hayes v [00:03:50] Tilden or Bush v. Gore?
Dan Cassino: [00:03:52] I've often argued that the present most similar to Donald Trump is in fact, Andrew Jackson. If Donald Trump loses and says this was fraud, I shouldn't have lost. [00:04:00] This is exactly Andrew Jackson argues in 1824. He doesn't just go away. He instead decides, no, I'm going to push forward. I don't care. I'm going to run again in 1828 and [00:04:10] I'm going to win that time. I'm not going to let this be taken away from me.
Nick Capodice: [00:04:16] That's elections and the Supreme Court. Remember, if you have any questions whatsoever [00:04:20] that you want us to ask our bevy of talented scholars, just go to civics101podcast.org and click ask a question.
