Richard Hasen, professor of law and political science at the University of California, Irvine, and the author of Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy, told The Bulwark, “My general view is that these hearings won’t reveal much about how a future Justice will vote in cases. So aside from raising the question of recusal should a Trump v. Biden case make it to the Court connected to the election, the best chance to get some insight is to ask about past cases, especially older cases, related to voting rights.”
How could this be done? Election lawyers and experts I contacted offered a range of fair-game questions Barrett could be asked. For example, “Do you believe Bush v. Gore is precedent? If so, what does it stand for?”
Something as straightforward as “Does the Constitution guarantee a fundamental right to vote?” sounds simple enough—until you remember what Bush v. Gore was all about. Anyone who is familiar with that case knows the big fights didn’t happen when votes were cast, but when and how they were counted.
Barrett will surely refuse to speculate on a potential Trump v. Biden case—but what should happen, in accordance with the Constitution, when it comes to resolving election disputes?