Question: Could GOP-controlled SCOTUS cancel the election?

[DetlefK]

Trump is going out of his way to let the USPS go bankrupt. The GOP just rejected a coronavirus-stimulus-bill that would have paid for the USPS permanently, allowing only for a $10 billion loan.



Picture this:

1. The coronavirus-vaccine is estimated to be developed in a few months, but there's the question whether there will be mass-production and mass-delivery of the vaccine in time for the election. From what I have read, there's a fairly good chance the coronavirus-pandemic might still be around in November 2020.

2. The only way to actually hold the election would be by mail.

3. The USPS is gone. Vote by mail is impossible.

4. Citing that the election cannot be held safely, Trump asks SCOTUS to postpone the election until it can be held safely.



Is this legally-speaking possible?

[jberryhill]

1. No

Once again, the federal government does not conduct elections.

Each time you see a thread where someone wants to insist it is possible, add to the end of each dumb hypothetical, "...and Governors Cuomo, Newsom, etc. will say, 'oh, okay, shucks we'll just go along with that.'"

Elections are conducted by the states. They are not calling off their elections.

It is at this point where someone says "What about Bush v. Gore?" in thorough ignorance that the outcome of Bush v. Gore was to affirm the Florida Secretary of State's certification of the election results.

[Takket]

12. Correct and people also miss...

That president isn’t the only thing on the ballot. Imagine the chaos in January when there is not only no president but also 1/3 of the senate is gone. The entire house is gone. States are missing governors and legislatures. Even your local school board and elected judges are gone. There is no way in hell states are putting up with that.

[Hortensis]

22. Yes, except the other big question is what could they get away with

even though unconstitutional? SCOTUS's right wing is now that corrupt and extremist.

[jberryhill]

24. Again, you did not read what I wrote

Governor Andrew Cuomo is going to say, "Oh, shucks, well, I guess we won't have an election then."

This is pure silliness. Some people want this to be true. I don't know what their motivation for that might be, but I have my suspicions.

[Hortensis]

26. :) Jberry, you didn't think through what BOTH of us wrote.

I refer you back to Bush v Gore. No, of course SCOTUS cannot unilaterally "cancel" the general election. But, it's not pure silliness to fear they would use their power to overset democracy by assisting Republican taking of power.

[jberryhill]

36. "I refer you back to Bush v Gore"

IN WHICH THE SUPREME COURT REFUSED TO SET ASIDE THE STATE'S DETERMINATION OF AN ELECTION OUTCOME AS CERTIFIED BY THAT STATE'S SECRETARY.

[Hortensis]

39. Exactly, and the effect was to give the election to

the Bush camp. Bush's administration was as corrupt as Trump's, but far more competent. During their 8 years in power, they did a deal to smash the rule of law, dismantle progressive institutions, and advance authoritarianism and corruption in government, setting the Republicans up for further advances under Trump.

I didn't realize we're really disagreeing, but if we are let's leave it there.

[PAMod]

2. The recent ruling regarding the Wisconsin primary

was the exact opposite of that.

Regardless, even the SCOTUS knows the current terms of office end in January. That part is explicitly written in the US Constitution...

[empedocles]

3. Scotus has recently postponed trump tax case arguments twice so far

[Not sure why scotus couldn't empty their Courtroom of spectators. Plenty of space for hearings - could do remote also].

[quickesst]

4. doesn't look like it

Here is an article from the LA Times concerning that very question.
*********
Could Trump delay the November election? Not without risking forfeit to a Democrat

WASHINGTON —
Can Trump use the national emergency to delay the election?

No. The president does not have that power. Legal scholars are widely in agreement on this point, as are both Republican and Democratic election officials. The nonpartisan Congressional Research Service reached the same conclusion when it investigated the question in the aftermath of 9/11.

Under the U.S. Constitution, Trump and Vice President Mike Pence cannot stay in office past their four-year terms without being reelected. If the election does not happen for any reason, constitutional rules of succession kick in.

That could mean a lawmaker down the line of succession who is not up for reelection could be the new president. That person very well could be a Democrat, and installing a the Democrat in the White House is not an outcome Trump or any partisan Republican seeks
“The 20th Amendment says if we have not chosen a president by a certain date, it goes to succession,” said Rick Hasen, an election law scholar at UC Irvine. “It’s not like a delay would keep Trump in office longer.https://www.latimes.com/politics/story/2020-03-17/no-trump-cant-postpone-the-november-election-but-thats-the-first-question

[ooky]

23. "That person could very well be a democrat". How? Here's a how.

Patrick Leahy?

https://www.burlingtonfreepress.com/story/news/2020/03/23/if-coronavirus-delays-eleciton-vermont-senator-leahy-could-become-president/2897152001/

[quickesst]

48. if that's what it comes down to....

... I can certainly live with that.

[we can do it]

5. NO

[Stuart G]

15. NO, NO, NO, AND NO.!!!!!!!!!!!!!!!!!!!!!!!!!!!

[lark]

6. It's not "could" they, it's will they.

Of course it's not legal, but SCOTUS is already approving unconstitutional drumpf doings because they are fascist Russian Repugs and they will just up the ante further with their scurrilous nation destroying rulings. If drumpf declares martial law, they will 100% support him, it's who and what the 5 asses are.

[cbdo2007]

7. The election will happen but Trump will insist it is unfair and tie it up in courts for months/years

and stay in charge until the Supreme Court rules who the winner is. That's what he does. He doesn't get things cancelled, he argues, complains, blames, and drags things on and on until people get tired of fighting.

[Takket]

10. If that happens Pelosi is President Jan 2021 when drumpf's term ends.

[mcar]

19. Yes. As of noon on Jan 20, 2021, Dotard's term is over

He can whine and sue and scream and holler and shake his tiny fists, but he will not be president anymore.

[ooky]

25. Wiithout an election her term expires on Jan. 3, as would all House terms.

See responses 4 and 23 above for explanation.

[Takket]

27. california will be holding an election. newsome isn't having any of that shit

[ooky]

29. But it would be a new Congress. At that point no speaker has been chosen.

[ahoysrcsm]

57. I wonder, if California was the only state to hold elections...

and the 2 senators from California were the only 2 elected for the next term, would we have, a super duper majority in the senate?

Asking for a friend

[obamanut2012]

17. Doesn't matter, he will still cease to be President

And will be escorted out, and President Pelosi will be sworn in. Period.

[treestar]

8. They would have to attack it by using a state

Claiming that the state should not have had the election.

Then the SCOTUS could abuse reason and twist things to rule that the state indeed should not have had the election, creating a precedent.

The chaos is what the Dotard would like. Of course he would ignore the part that says he is out. Then would the SCOTUS have the effrontery to write an opinion saying he could stay? It depends on how bad the conservatives want to look in the world and in history. Is Roberts willing to lose all credibility and write such an opinion? Thomas? That I think is unlikely.

[obamanut2012]

18. Nope, that cannot happen

[treestar]

55. I hope so

But the Republicans are not above trying.

[Takket]

9. No. SCOTUS just made it clear in WI

That they feel it’s better for Americans to die at the polls than delay the election. For better or worse that is precident now.

[Bettie]

11. Normally, the answer would be no

but these days?

I wouldn't be surprised by anything.

But what is more likely is that the SCOTUS gives him a Bush v. Gore type ruling that it would be damaging for him not to remain president, so the election result is voided.

[jberryhill]

13. A "Bush v. Gore type ruling"

Would merely confirm the election results certified by the various secretaries of state of the individual states.

You do realize that the outcome of Bush v. Gore was to affirm the election results certified by the Florida secretary of state, yes?

[DetlefK]

14. You know what's the most perverted part of the "Bush v. Gore" ruling?

SCOTUS made a decision and then added the caveat that this decision may not be cited as precedent in future SCOTUS litigation.

[jberryhill]

20. Issuing non-precedential opinions is a common practice

https://en.wikipedia.org/wiki/Non-publication_of_legal_opinions_in_the_United_States

An unpublished opinion is a decision of a court that is not available for citation as precedent because the court deems the case to have insufficient precedential value.

...

From 2000 to 2008, the U.S. Court of Appeals for the 4th Circuit had the highest rate of non-publication (92%), and more than 85% of the decisions in the 3rd Circuit, 5th Circuit, 9th Circuit, and 11th Circuit went unpublished.


The term "unpublished" nor "non-published" is generally used in quotes, because they are published in the sense of being made public records, but they cannot be cited as precedent.

Every court does this. Often.

What do you find to be particularly unusual about that?

Here:

https://www.google.com/search?client=firefox-b-1-d&q=non-precedential+opinion

[samsingh]

32. That revealed its corrupt nature right there

repugs anywhere cannot be trusted. The Supreme Court is no different.

[obamanut2012]

16. No, and this continual fear mongering about it is counter-productive

[fescuerescue]

21. Yes they could. Absolutely 100% they can

The constitution only says what the Supreme Court says it says.

If the Supreme Court says it's ok to cancel this election, that that's it. It's DONE. No appeal, No review.


In the end, we DO have a dictatorship of 9 people who are beyond review.

It's worked ok so far. And many times, the SC has created rights for us that we hold dearly.

But it can work against us to.

Just ask AL Gore.

(edit to add: I don't think they will do such a thing, but they have the power.)

(I also didn't think they would interfere in the Florida state election and hand it to Bush. But they did)

[mahatmakanejeeves]

28. It's time for my first drink of the day.

What are you having, jberryhill?

[Takket]

31. you're wrong

sorry, not trying to be a jerk... just your post is completely wrong and woefully uniformed. There really isn't a nice way to say it.

[fescuerescue]

33. That's fine. I've been wrong before.

(I was wrong when I said that the SC wouldn't touch the Florida matter)

But take some time and look at other Supreme Court rulings that make you stand up and say "THAT IS ABSOLUTELY WRONG". I'm sure there is at least one.

Then count how many times they were wrong and YET, the ruling was carried out anyway.


Every single one of these below, had the force of law for at least a long time, if not permanently.

https://blogs.findlaw.com/supreme_court/2015/10/13-worst-supreme-court-decisions-of-all-time.html

[we can do it]

49. 🙄good lord🙄

[fescuerescue]

54. Can doesn't mean will

I don't think they will.

But if were to standup and affirm for the plantive (Trump admin), that the court feels it is the best interest to delay or cancel the 2020 Election.

What would the recourse be? Those 5 people are humans, so it's not IMPOSSIBLE for them to make that ruling.

The question is, what is the recourse to that ruling?

(what was the recourse to Bush vs Gore)?

[DarthDem]

30. No, It's Not Possible

I do not understand why this gets raised here continuously. There are more realistic worries to talk about, if all we must talk about are worries.

[Thomas Hurt]

34. No, but are they willing to try in an attempt to disrupt and drive away voters...

with the backing of the GOP majority led states?

[Orangepeel]

35. No. But republican state legislatures could decide to award electoral college votes themselves

instead of having a popular vote election.

[sarisataka]

37. Asked and answered

About 4000 times

[getagrip_already]

38. I disagree with "it isn't possible" - at least not directly

The SCOTUS can't do anything on their own, they can only issue rulings on matters of federal law and the constitution presented to them. Elections are handled by the states, and it is up to state governors to hold elections. But the election does need to be certified. Failing that, the process gets murky.

So they can't vote to cancel anything on their own.

But, if a case comes to them pitting federal orders against a states right to hold an election, or contesting the certification of a partial election, they could decide to side with the wh and in effect order a postponement or nullify the results.

They would have to do handsprings wrt to the wording of the constitution, but hey, it's only words on paper vs. words on paper.

Once they rule, no matter how egregiously, it becomes the final word on the law. Period. End of story.

But they could just say that elections are actually not required since there is a mechanism for the states to directly elect a president. All it takes is a vote from each state in the house, and the election is official.

Of course, each state only gets one vote, so it becomes a vote that the republicans will ultimately control. There would surely be a republican selected potus.

And thus it could come that there would be no popular election, but a potus would still be elected, aided and abetted by the SCOTUS.

Unless the house somehow manages to not hold that vote until the 20th, at which point the potus and vp terms end and the next in succession would be the speaker of the house. But again, with no certified results, and their terms ending in early january, who would even be speaker?

Again, a decision for scotus.

[dware]

40. If that were to happen, highly unlikely,

but can you imagine the massive civil unrest throughout the country?
There would be massive marches on DC, acts of violence, etc.

I don't know if your scenario is possible, but it just isn't going to happen regardless.

[getagrip_already]

42. my guess is the trump regime is salivating at the thought of mass demonstrations....

It would make ohio state look like an accidental shooting.

[dware]

44. Just who is going to shoot at the demonstrators?

Not the military, after Kent State, the National Guard certainly won't, the police?
Maybe, but they would be overwhelmed.

How do you stop millions upon millions of demonstrators who are righting a wrong?

Nope, this is just not going to happen, even if it were feasible.

[uponit7771]

41. You mean like they "effectively" did in 2001?

[jberryhill]

43. No they didn't

In 2001, they UPHELD the STATE certification of the Florida election results.

The FL Secretary of State had already certified the election results, prior to challenges being mounted at the state and federal level.

It boggles my mind that people who are under the delusion that the federal government conducts elections do not even grasp the most basic fact of the Bush v. Gore decision - i.e. that it affirmed that the STATE is the final authority relative to their election results.

There are people here on DU who will continue to insist that Trump is going to call off the election and there is nothing we can do. I leave speculation about their motivation for demotivating others as an exercise for the reader.

[uponit7771]

45. "The Court therefore effectively ended the proposed recount, because " ... really jh?

§ 5." The Court therefore effectively ended the proposed recount, because "the Florida Legislature intended to obtain the safe-harbor benefits of 3 U.S.C. §5." Four justices (Justices Stevens, Ginsburg, Souter and Breyer) dissented as to stopping the recount.

https://en.wikipedia.org/wiki/Bush_v._Gore

...There are people here on DU who will continue to insist that Trump is going to call off the election and there is nothing we can do. I leave speculation about their motivation for demotivating others as an exercise for the reader.

Deflection,

Trump can .... effectively ... tilt the national election in a myriad of ways towards him winning, Wisconsin was a trial run

[jberryhill]

47. "proposed recount"

You are now using an excerpt to make what is essentially a dishonest point.

Yes, there was a "proposed recount". Do you know what "proposed recount" means. It means the Secretary of State had already certified the results and there was a fight on to conduct a recount.

The decision stated that the Secretary of State of Florida's certification should be given the final say. It was done using a statutory deadline as an artifice.

But you are ignoring the relevance of the decision entirely. NOWHERE did it say that any federal authority had any role in Florida's authority to conduct its elections. The result of the decision was NOT to interfere in Florida's determination of its election results.

[uponit7771]

52. ... & you're acting as if I can't read the dissent right? You know the 4 person one

That blows away the logic of the 5 overriding Florida SC?

Your position works on LIVs, this is DU

Ginsburg dissent

https://www.law.cornell.edu/supct/html/00-949.ZD2.html

But disagreement with the Florida court’s interpretation of its own State’s law does not warrant the conclusion that the justices of that court have legislated.

the five Republican justices overrode a state supreme court and threw in their own s*** we both know this.... stop it

[dware]

46. It boggles my mind that after numerous threads about this,

there are still people who don't get it.

[zstat]

50. Lets not be naivete. Declare martial law in Philly, Detroit, Milwaukee.

Because of pandemic second wave in the northeast, and with large minority populations, declare martial law with federal troops to force quarantine and restrict movement and travel. Suppress the city vote on election day. Pick these three cities and watch Wisconsin, Michigan and Pennsylvania go red.

[The Velveteen Ocelot]

51. No. Asked and answered. Repeatedly.

[Hoyt]

53. Election will happen, trump wii vacate office if we vote him out, etc.

Just vote, everything else will take care of itself.

USPS isn’t going anywhere. At worst, it will have to raise rates a little to remain viable.

Most states already allow voting by mail with no-excuse absentee voting. All others have absentee voting requiring no or little change to adapt to CV19.

VOTE! Stop conjuring fears.

[fescuerescue]

56. If government and society starts breaking down

Pretty much all the argument on this page has no place, because it's based on precedent, reason and well meaning people.

However in a scenario where delay of National election is being seriously proposed to the point of being in the front of the SC, society IS breaking down, and precedent, reason and well meaning people have all had to take a back seat.

ALso, I'm not sure why we pretend that the SC always make the correct constitutional decision. Even recent history challenges that notion