This year’s post-election court battles could make Bush v. Gore seem like a functioning democracy

Following Election Day 2000, Americans spent weeks wondering whether Florida's 29 electoral votes had been won by Democratic Vice President Al Gore or Republican Texas Gov. George W. Bush — and eventually, Gore conceded, congratulating Bush on becoming the next president of the United States. British journalist Ed Luce, who now lives in the U.S., fears that the 2020 presidential election could be even more chaotic and result in several court battles that will make the Bush v. Gore debacle of 2000 pale in comparison. And he outlines his concerns in an article for Financial Times.

"It is possible (former Vice President Joe) Biden will win Florida on Tuesday night and end all speculation," Luce writes. "Failing that, the chances of a rash of court battles over vote counts is high. The Supreme Court has ruled on cases involving four states in the past month alone."

Discussing those rulings, Luce adds, "In cases on South Carolina and Wisconsin, it ruled to make voting harder. Although it upheld Pennsylvania's three-day extension for postal ballots, the Court left itself wiggle room to return to the issue next month. The justices also let stand North Carolina's extension for mailed in ballots to nine days. The stated logic behind some of these rulings have not been reassuring. (Justice) Brett Kavanaugh, who was confirmed in late 2018 as the second of Mr. Trump's three appointments, cited the previously off-limits Bush v. Gore ruling in support of a ruling to stop a deadline extension for Wisconsin's mail-in ballots. In the South Carolina ruling, which mandated that postal ballots had to have a countersignature, he likewise argued that decisions by state legislatures 'ordinarily should not be subject to second-guessing' by federal judges."

Luce goes on to describe a disturbing possibility: electors in swing states defying the will of the voters and giving the electoral votes to President Donald Trump — even if Biden really won the state.

"Most swing-state legislatures — including Florida, Wisconsin, Michigan and Pennsylvania — are Republican," Luce writes. "Should any one of these override their state's popular vote and pledge their electors to Mr. Trump, Mr. Kavanaugh has made his sympathies known. The same applies to at least three of his colleagues." And Luce adds that Justice Amy Coney Barrett, the latest addition to the High Court, "could make a majority."

Luce wraps up his piece by lamenting that the Supreme Court "gutted the 1965 Voting Rights Act, in 2013, on the grounds that protecting minority rights was no longer necessary" and pointing out how evasive Barrett was during her Senate confirmation hearings.

"Asked repeatedly during her confirmation hearings about how she would deal with any appearance of impropriety that would result from her ruling on election cases, Ms. Barrett would only commit 'to fully and faithfully applying the law of recusal,'" Luce explains." Given that she was hurriedly confirmed a week before the election and sworn in by Mr. Trump within hours, it is not clear what that means. Under a conservative reading of the language originalist judges use in their opinions, many things are possible in the coming weeks."