Today’s Ask Civics 101 question: How does the Supreme Court get involved with presidential elections?
Read on, or listen to this short podcast episode for the answer.
A listener asks: “It has happened before that in very close elections, the Supreme Court chose the winner. How does that happen?”
It happens very rarely. Only two times in U.S. history has the Supreme Court or its justices been involved in selecting a president: Hayes v Tilden in 1876, and Bush v Gore in 2000. But let’s first examine the path to the highest court in the land.
If a state’s results are so exceptionally close that each candidate can claim that if the ballots are counted a certain way they will win, the election is technically a tie. At that point, it is no longer up to the voters, the winner is decided by elected officials and judges.
In most states, the Secretary of State of that state is in charge of elections, and they determine the winner of that state’s electoral votes.
Bush v Gore
In 2000, Florida Secretary of State Katherine Harris called the state for George W. Bush. The Florida Supreme Court ordered a recount, specifically of the over 61,000 ballots that had been missed by tabulation machines. The Bush campaign asked the US Supreme Court to stop that recount and go with Secretary Harris’s call.
On December 12, the Court delivered an opinion that supported Secretary Harris’s certification, and Vice President Gore gave a concession speech the next day.
The decision in Bush v Gore was an extremely narrow ruling. This does not mean it was a close vote in the Court - it was 7-2 in favor of stopping the recount- but it means that the opinion was written in such a way as to prevent it from being used as precedent for future cases.
Hayes v Tilden
The election of 1876 was one of the most fraught in our nation’s history. Democrat Samuel Tilden and Republican Rutherford B. Hayes both claimed extensive voter fraud in several states, totaling up to 19 electoral votes.
To determine the winner, Congress in 1877 convened a special commission, which included five Supreme Court justices. The commission had one more Republican than it did a Democrat, and everyone voted on party lines to award the 19 votes, and the election, to Hayes.
However, even while the commission deliberated, party leaders worked on a compromise. Tilden would concede the victory to Hayes peacefully, with the stipulation that the Republican party cease all federal attempts to protect the rights of Black Americans in the South. Hayes agreed, and Reconstruction was ended.
In the following decades, through Jim Crow laws, violence, and intimidation from supremacist organizations like the Ku Klux Klan, Black voters suffered enormous disenfranchisement.
What all this means for 2020
Our guest, Dan Cassino, said that neither the 2000 or 1876 model fit with our current situation, in which a candidate has lost the election and is making baseless claims of fraud.
However, there is another historical moment that can be related to 2020, and that is when Andrew Jackson lost the election in 1824 to John Quincy Adams. Jackson had the plurality of electoral votes, but as no candidate had a majority, it fell to the House to choose the president.
Jackson did not dispute the decision of the Jouse, but opted instead to campaign fervently towards winning the office in 1828, which he did with a resounding 56% of the popular vote.