How many judges are there in Florida

Will the US election end in court?: "Not at all clear whether the Supreme Court would have jurisdiction"


Before the election in the USA, President Trump is counting on a new conservative judge at the US Supreme Court. Niels Petersen explains in an interview how and why the election could even be decided by the highest judges.

LTO: Professor Petersen, it has been suspected for months that US President Trump "will go to the Supreme Court" if he loses the election. What would be justiciable about the election?

Prof. Dr. Niels Petersen: Of course, Mr. Trump cannot simply sue "against the election". But there are regulations in the states for counting votes, which are very different and sometimes very controversial. One question is, for example, by when does the counting of votes have to be completed - and what happens if you don't have a sure result by then? And what if, when the result is tight in a state, the votes have to be counted again, like twenty years ago in Florida?

Shouldn't one think that all votes simply have to be counted so that the result is certain?

It is not that easy. In the US there are strict limits on when the count must be completed. This is also due to the fact that the electorate must then be determined, who then meet at the beginning of December in the Electoral College and elect the president.

Trump repeatedly demands that one must have a final election result on November 3rd. But is that unrealistic?

At least if the choice is rather tight, as expected, the result will not be clear at midnight. This year, the counting is particularly complicated due to the corona pandemic, because more safety measures have to be observed. Some primaries took a month to count the votes. In addition, in many countries, the presence votes are counted first, followed by the postal votes - and these could change the result.

"Republicans are more willing to go to the polling station"

Republicans believe that the votes cast on election day are more likely to be a Republican majority, while postal votes are more likely to come from the Democrats. Why?

Trump has discredited the postal vote in advance, so many Republicans are likely to have waived a postal vote this year. In addition, the politically charged debate on the corona pandemic also plays a role: The supporters of the Democrats are more in favor of stricter measures, they may also be more worried about being infected - and therefore resort to postal voting. Republican supporters are more willing to go to the polling station even when it gets full.

The counting of postal votes is particularly controversial. The US Supreme Court has already made decisions on this in the past few days. What does that mean for the election?

It was about the question until when the postal votes can still be considered. Of course, the voting letters have to be handed in by November 3rd at the latest, but there may be delays in the mail. In North Carolina, votes received nine days after the election may also be considered; in Pennsylvania, it is three days.

The US Supreme Court initially confirmed this. However, in the case of the Pennsylvania decision in particular, it is only a matter of an urgent application by the Republicans being rejected - the Supreme Court has reserved the right to make a final decision on this case after the election. It may well be that Pennsylvania then matters.

"Trump and Biden would have to go to state courts first"

If there are lawsuits after the election, how does the case get to the US Supreme Court?

Different constellations are conceivable: For example, that Trump declares after the election that it is now a legitimate result that the further counts would have to be stopped. If a Republican governor then stops the count, Trump's challenger Joe Biden is sure to sue. But it is also possible that in some states the counts are still going on and Trump is demanding that the counts stop in court.

However, both Trump and Biden must first turn to the courts of the respective state. The US Supreme Court can then be appealed against their decision. The judges must then first clarify whether they are even authorized to review the content of the decision of the respective federal court.

So it is not at all clear how far the US Supreme Court's authority to review the election decisions actually extends?

No. There was the decision to count the votes in Florida in the election of George W. Bush in 2000, which the Democratic presidential candidate Al Gore ultimately lost with only 537 votes. At that time, the US Supreme Court granted itself the authority to review the decision of the Supreme Court of Florida. However, the judges also made it clear that this decision related to the specific individual case.

"Trump will do everything in his power to win"

Trump has appointed three conservative judges during his tenure: Neil Gorsuch, Brett Kavanaugh and now Amy Coney Barrett, do these three form a camp? And will they decide in his favor?

Not necessarily. The previous decisions on postal voting in North Carolina, Pennsylvania and Wisconsin were very different - this already shows that it will depend on the specific constellation and the regulations of the respective state.

In the Pennsylvania decision, the four conservative judges - Gorsuch, Kavanaugh, Alito and Thomas - voted together, while Chief Justice John Roberts, who is actually more of the conservative camp, voted with the liberal judges Sotomayor and Kagan and with Judge Breyer. So it was a 4: 4 decision, which meant that the decision of the Supreme Court of Pennsylvania was upheld for the time being.

Now, of course, Trump hopes that Barrett will tip the scales. But it is never said whether the judges actually vote afterwards as is expected of them.

Why is it that this election is so controversial - the US electoral system or President Trump?

It is not uncommon in the United States for the courts to have to make choices. This is due to the US electoral system with its "the winner takes it all" principle. Often it only comes down to a few thousand votes in a state - they then decide which candidate receives all the votes. The counting in such states is enormously crucial, so it stands to reason that it should also be challenged in court if there are irregularities. It's different with us: In Germany it may be a question of whether a party gets more or less one seat - but it is seldom that the majority situation changes completely.

In addition, of course, Trump is extremely polarizing. A democracy always works well when everyone not only adheres to the written, but also to the unwritten rules. With President Trump, however, the impression arises that he at least doesn't care about the unwritten rules and that he will do everything in his power to win the election.

Prof. Dr. Niels Petersen holds the chair for public law, international and European law as well as empirical legal research at the Westfälische Wilhelms-Universität Münster.