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Make Sure Your Vote Has Been Counted
By Miriam Edelman

Election 2020 just happened. As of early November 4, we don’t know who will be the next president or who will control the Senate. Former Vice President Joe Biden leads President Donald Trump in electoral votes but Trump has declared himself the winner in some states that have not been called. He wants to go to the Supreme Court. He wants voting to stop.

As the saying goes, hindsight is 20/20. However, the year 2020 has been the worst of times revisited, featuring repeats of some of the country’s darkest times, including the 1918 Spanish plague, the Great Depression, the 1960s race riots, natural disasters, and the 2016 Supreme Court vacancy. The United States is in the middle of the coronavirus pandemic. More than 220,000 people have died—more than the Vietnam, Korean, Iraq, Afghanistan, and Persian Gulf wars combined.

The pandemic caused an economic collapse, with 22 million Americans becoming unemployed. George Floyd’s murder in Minnesota spurred racial protests and social unrest. In the fall, the United States experienced massive forest fires and other natural disasters.

Right before the November 2020 elections, Justice Amy Coney Barrett joined the Court after a bitter confirmation. Some want to pack the Supreme Court, but in 2016, some Republicans wanted to decrease the Supreme Court’s size if then-Democratic nominee Hillary Clinton became president. This horrific 2020 could end with a Trump v. Biden case even more contentious than 2000’s Bush v. Gore.

Trump v. Biden could be similar to but worse than Bush v. Gore. Both could involve counting presidential election votes, and both could be decided by narrow Supreme Court majorities. However, Trump v. Biden could be more disastrous because more states’ votes could be disputed and because certain Supreme Court justices could rule in favor of Trump.

The 5-4 Bush v. Gore Supreme Court decision, which stopped the vote counting in Florida when then-Republican presidential nominee George W. Bush led, awarded Florida’s 25 electoral votes to Bush and effectively handed him the 2000 presidential election. This decision was controversial and eroded the respect, legitimacy, and authority of the Supreme Court. Many people felt that this close 5-4 decision determined the controversial election’s results. Thus, they felt that democracy was not implemented fairly. This decision was polarizing on racial and partisan lines. People’s views on Bush v. Gore were connected to how their preferred candidate did.

It was problematic for the Supreme Court to hear the Bush v. Gore case. In the past, the Supreme Court dismissed some cases due to them being mostly political. The Supreme Court’s decision not to follow that precedent would make some people question the justices’ motives. Although the charge on the Bush v. Gore case was about balloting, the case was political because it determined who would become president. Because most Supreme Court justices were conservative, they supported Bush. They held that the recount ordered by Florida violated the Equal Protection Clause of the 14th amendment of the U.S. Constitution.

The Clause issue happened because different areas in Florida used different standards when recounting votes. The Supreme Court believed that the ballots of all eligible voters in the same election should be treated the same. That explanation was questioned because other Supreme Court decisions weigh against such an application of the Clause. Democracy is based on people’s votes; if there is a controversy about votes, they should be recounted.

The Bush v. Gore decision was debated for other reasons as well. Although conservative justices usually support states’ rights, the court ruled against Florida in Bush v. Gore. Although there have been several 5-4 Supreme Court rulings on key cases in recent years, the Supreme Court historically had unanimous decisions on landmark cases such as Brown v. Board of Education. However, although the Supreme Court knew the magnitude of Bush v. Gore, it decided this case with a 5-4 vote. The Supreme Court also stated that its Bush v. Gore decision could not be used as precedent, violating its deferrals to its prior decisions as precedent. However, in 2020, Trump’s campaign relied on Bush v. Gore in cases against voting by mail in Nevada and New Jersey.

The Supreme Court could rule in similar ways in Trump v. Biden as it did in Bush v. Gore. It could rule against states’ rights again as it halts counts of many states’ votes. However, the Clause most likely could not apply in Trump v. Biden, which could come down to whether mail-in ballots could be counted. According to the Bush v. Gore standard, all ballots should be counted. Thus, mail-in ballots should count.

Another difference between Bush v. Gore and Trump v. Biden is the current make-up of the Supreme Court—only Clarence Thomas and Stephen G. Breyer remain from those Justices who made decisions in Bush v. Gore. Nevertheless, the Court could rule 6-3 in favor of Trump. The six pro-Trump votes could be cast by Justices Thomas, John Roberts, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Barrett. (The latter three are Trump appointees.)

Many Americans might feel that this Court does not adequately reflect their views. Five current justices were appointed by presidents who lost the popular vote. One remaining justice was appointed by a president who twice won a presidential popular vote plurality. Three current justices (Roberts, Kavanaugh, and Barrett) assisted the Bush legal team in Bush v. Gore. They could support Trump in 2020.

A Trump reelection victory via the courts could erode public trust in the Supreme Court when there are already problems concerning its public perception. As partisanship increased, Senate Supreme Court confirmation votes have become much closer. For example: Ruth Bader Ginsburg was confirmed 96-3 in 1993 while Kavanaugh was confirmed 50-48 in 2018. Some people already think of Supreme Court justices as conservative or liberal, not just as justices. The public cannot lose more trust in the Court.

Even if the Supreme Court seemingly decides the 2020 presidential election, Congress could still choose the 2020 presidential election winner. Do not despair.

We the people, the first three words of the U.S. Constitution’s Preamble, can avert this catastrophe by ensuring our votes count. We could very well avoid Trump v. Biden. We can contact our governors, state secretaries of state, state legislators, and boards of elections. We can help prevent more turmoil.

— Native Washingtonian Miriam Edelman graduated from Barnard College, Columbia University, with majors in political science and urban studies and a concentration in history. For almost five years, she worked on Capitol Hill in personal offices and on committees in the U.S. Senate and the U.S. House of Representatives. In May 2012, she graduated with a master’s in public administration from Cornell University, where she was inducted into Pi Alpha Alpha, the national honorary society for public administration. Primarily for her work founding the Jade Moore Forum on American Politics in memory of her late friend, Edelman was one of two graduate student recipients of the Cornell-wide Distinguished Leadership Award. She also has a master’s of science in social work (focusing on policy) from Columbia University. She aims to continue her career in public service.