The Supreme Court Could Complicate This Election

Sixteen years ago, Bush v. Gore went all the way to the U.S. Supreme Court; four elections later, another popular vote winner lost the Electoral College to her opponent. The presidential election continues to be embroiled in controversy, even as President-elect Donald Trump selects his cabinet; so, will Clinton v. Trump make it to the Supreme Court?

It depends on a number of factors; if a state court or legislature's decision regarding the presidential election is appealed enough, it could end up in the U.S. Supreme Court. But this depends on where and in which court a potential lawsuit would be filed, and what the purpose of filing that suit is. For example, one side could argue that voters have been disenfranchised, thus swaying the election's results.

Complicating matters further, the Green Party's Jill Stein is in the midst of an effort to recount votes in key battleground states, and Hillary Clinton's campaign has agreed to cooperate. On the other hand, Trump has claimed (without evidence) via Twitter that "In addition to winning the Electoral College in a landslide, I won the popular vote if you deduct the millions of people who voted illegally." If the recount reverses the election results, it seems pretty likely that Trump wouldn't accept the results without taking his opponent to court. The president-elect recently accused the Green Party, once again via Twitter, of using an election recount to "fill up their coffers."

The most recent point of reference for whether Clinton v. Trump will end up being deliberated in court is Bush v. Gore, during which the Supreme Court ruled that Florida's manual recount of ballots was unconstitutional because it violated the Fourteenth Amendment's Equal Protection Clause. During a ballot recount called for by Democrat Al Gore, some of the ballots were manually counted, while others were counted by machines. This violated the Equal Protection Clause because some of the ballots were more protected than others. The Florida Supreme Court had originally ruled in favor of a manual count, but the Supreme Court ultimately overturned the decision. Bush v. Gore had a controversial verdict because the five judges who voted against a recount were appointed by Republicans, and they had previously tended to defer to state court decisions. Still, others praised the Supreme Court's focus on equal rights.

It seems unlikely that Clinton v. Trump would reach the Supreme Court, but seeing as many unexpected things have happened during this election, I wouldn't rule out the possibility. The lack of a tie-breaking Supreme Court judge makes things even more complicated, but what would the end of this election season be without even more drama? I certainly don't know.