Leading up to the 2020 general election on November 3, President Trump frequently cast suspicion on mail-in votes received after Election Day. He opposed the counting of these votes even if they were timely submitted and received in accordance with state law. In order to cast doubt on the outcome of the election, he perpetuated the myth that mail-in votes were susceptible to fraud and that Democrats were trying to steal the election. As it turned out, President Trump went into the early morning hours of election night with large leads in Wisconsin, Michigan, and Pennsylvania—the three most important swing states in the election. However, Democratic voters in these states cast their ballots at a much higher rate by mail than Republicans. As a result, there was a blue shift overnight that swung the election in Joe Biden’s favor.
Previously, in a concurring opinion in Democratic National Committee, et al. v. Wisconsin State Legislature, et al. (2020), Justice Kavanaugh seemed to channel the president’s unfounded claims of vote-stealing by Democrats.1 He explained, “For important reasons, most States, including Wisconsin, require absentee ballots to be received by election day, not just mailed by election day. Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election.”2 He continued, “And those States also want to be able to definitely announce the results of the election on election night, or as soon as possible thereafter.”3
Since it often takes days for state election officials to count all of the ballots, many people were shocked to hear a judge parroting the president’s attempts to delegitimize lawfully submitted ballots received after Election Day. The “winners” declared on election night by television networks are nothing more than projections based on their own statistical analyses. They do not represent final vote tallies or certified results. Yet, Justice Kavanaugh suggested in his concurrence that thousands of votes counted after Election Day might “flip the results of an election.”4 His comments garnered national media attention because they raised an obvious question: how can counting ballots after Election Day “flip” the results of an election that hasn’t been certified.
The other part of his concurrence that caught people’s attention was his reference in a footnote to the Bush v. Gore (2000) decision.5 He cited Bush for the proposition that a state court’s departure from the legislative scheme for appointing electors presented a federal constitutional question. This was a foreboding signal of what might happen in a contentious election if it ended up at the Supreme Court. The Republican justices might treat the counting of mail-in ballots as a federal constitutional question. They had intervened before to stop a vote count, and many people wondered if it could happen again.
It is noteworthy that three of the justices on the Supreme Court in 2020, were part of Governor Bush’s legal team in Bush v. Gore (Justices Roberts, Kavanaugh, and Barrett). It is no coincidence that these three party loyalists ended up on the court. Indeed, Justice Barrett’s confirmation was rushed through in less than a month in order to ensure a 6-3 Republican majority in case of a contested election. She was the first justice confirmed since 1869, without a single vote from the opposing party.
It is no wonder the court’s impartiality has come under increasing scrutiny in recent years. Partisan decisions on key election law issues have been undermining the independence and legitimacy of the court for years, and political leaders have taken notice. In a tweet from October 30, 2020, just days before the general election, President Trump announced, “If Sleepy Joe Biden is actually elected President, the 4 justices (plus1) that helped make such a ridiculous win possible would be relegated to sitting on not only a heavily PACKED COURT, but probably a REVOLVING COURT as well.” This was followed by a declaration, on the night of the election, that President Trump was “going to the Supreme Court” to stop the vote-counting. These statements could be dismissed as misguided attempts to influence the court, but the justices created this cloud of partisanship that hangs over their decision-making on key election issues.
Prior to the election, the Republican Party scored numerous victories in federal appellate courts, including the Supreme Court. President Trump’s judicial appointees were sympathetic to cases challenging injunctions issued by federal district courts regarding state election procedures. However, these election law battles were fought before Election Day. Once the votes were counted, federal judges were clearly reluctant to overturn the results of an election. Even President Trump’s own judicial appointees balked at these attempts.
After the election, the Trump Campaign launched over sixty lawsuits challenging the results. These frivolous lawsuits were nothing less than a siege on the Judiciary. The Trump Campaign bombarded the courts with lawsuits in the hopes of finding Conservative judges who would crack. If any federal judges had intervened to throw the election to President Trump, it would have been a major blow to judicial independence and American democracy. However, the courts didn’t buckle and the Supreme Court refused to entertain these unsubstantiated claims of voter fraud.
While many court watchers might view this as a major victory for judicial impartiality, upholding a free and fair democratic election is the minimum we expect from federal judges. The Trump Campaign was unable to produce any credible evidence of voter fraud. Even Republican secretaries of state, in swing states, dismissed allegations of fraud and certified their states’ results. The president’s own Director of Cybersecurity, Christopher Krebs, declared it to be the most secure election in American history.
What is deeply concerning about these attempts to undermine the outcome of a free and fair election is the ongoing effort by the Republican Party to gerrymander, purge registration rolls, limit mail-in voting, and suppress votes, while the Supreme Court looks the other way. The Republican Party’s efforts at voter suppression have only ramped up since the 2020 election. Republican-controlled legislatures across the country have introduced hundreds of bills targeting voter registration, as well as, absentee and early voting. In March 2021, the Georgia Legislature passed a sweeping bill imposing new voter restrictions, including photo ID for absentee voting and reductions in ballot drop boxes. The bill also reduced the number of days for runoff elections after the Democrats flipped both Georgia Senate seats in runoffs two months prior. These restrictions were aimed at minority and low-income voters and based on unfounded and irrational claims of election insecurity. This pattern is being repeated all over the country. Republican leaders frequently cite their constituents’ concerns as justification for these bills, but the lawmakers are the ones planting the seeds of doubt. In the coming decade, it remains to be seen whether the Supreme Court will continue to acquiesce to these voter suppression efforts, or protect the constitutional right to vote.
Term Limits
The single most important judicial reform lawmakers should pursue is term limits for Supreme Court justices. Serving on the Supreme Court should be the apex of a legal career, and not a career itself. The court has long been the most undemocratic institution in our system of government. The unelected members of the court play an enormously outsized role in shaping our policies and institutions with very little accountability, and as life expectancy has increased, so have the justices’ tenures. Rather than stepping down at a suitable time, justices are now strategically timing their exits to ensure a replacement who fits their partisan preferences.
It is unlikely that term limits will make the justices more accountable, or even less political, but it will ensure that partisan justices are rotated out at regular intervals. Since the justices are nominated by the president and confirmed by the Senate, a rotating court will better reflect the diversity and the choices of the electorate over time. In this way, term limits will make the Supreme Court a more democratic institution.
NOTES
1. Democratic Nat’l Committee, et al. v. Wisconsin State Legislature, 592 U.S.____(2020).
2. Democratic Nat’l Committee, 592 U.S. at 6–7.
3. Id. at 7.
4. Id.
5. Bush v. Gore, 531 U.S. 98 (2000).