2020 and the shadow of Bush v. Gore

On the other hand, this Court has also been extremely cautious about not jeopardizing its own legitimacy by intruding overmuch in the political sphere. Indeed, the gerrymandering case can be defended on precisely those terms, and while striking down the Voting Rights Act provisions was an act in blatant disregard of the power and intent of Congress, it substantively removed judges from involvement in supervising elections, and was arguably therefore a retreat from judicial involvement in elections. Most recently, the Court’s stay cutting off extended absentee voting in the Wisconsin primary was strikingly defensive in tone, taking unusual pains to argue that it was not establishing a wider precedent but only acting to prevent sudden, last-minute changes to an election already underway ordered by a lower court in defiance of the legislature’s own decisions. Considering the powerful arguments that Bush v. Gore was itself not truly justiciable — arguments very similar to positions that the Roberts Court has taken in other contexts — it’s entirely possible to imagine the Court punting altogether rather than grasping the nettle.

This, however, would simply kick the chaos back down to the various states, where state legislatures, governors and state supreme courts might wind up going to war with each other in ways that have a consistently partisan tinge. Chaos would only serve the interest of those eager to discredit the election, and could ultimately toss the result to the House of Representatives where the GOP, even though in the minority, still controls the majority of state delegations, each of which would get a single vote in breaking an Electoral College deadlock. Ironically, this time it might be liberals and Democrats who want the Supreme Court to weigh in, particularly if similar conflicts over counting absentee ballots crop up in multiple states. If faced with the question, the Supreme Court might still conceivably be the only body able to lay down a set of principles that both sides could agree is not transparently one-sided or arbitrary.