By MICHAEL H. SAHN //
Election Day is fast approaching. But no one should expect the U.S. presidential election to be decided until weeks later.
There is the distinct probability that disputes and challenges to the process for counting and certifying the votes will extend well after the election, especially given the time it will take to count the large number of mail-in and absentee ballots expected to be cast this year. In a recent New Yorker article, pundit Jeffrey Toobin outlined many post-election scenarios, including disputes that may extend until Jan. 6, when Congress is scheduled to certify the Electoral College’s tally of votes.
Meanwhile, the governance of the nation will be left in doubt.
Alexis de Tocqueville, the French diplomat, aristocrat and political scientist who traveled to America in the early 1830s, wrote in his 1835 book “Democracy in America” that “there is hardly any political question in the United States that sooner or later does not turn into a judicial question.”
That observation has proven true throughout American history, with good reason. The Supreme Court’s landmark 1803 decision in Marbury v. Madison established the principle of judicial review; judicial review gave the Supreme Court the power to determine whether laws are constitutional. And that puts the Supreme Court squarely in the middle of the most important political issues.Over the decades, the court has confronted the significant issues of the moment – civil rights, abortion, education equality, voting rights, affirmative action, interstate commerce, privacy rights, war powers, due process and others.
But no issue is more important to our democracy than deciding how to count the votes on Election Day.
The Supreme Court’s decision in Bush v. Gore effectively allowed the vote certification of the Florida secretary of state – declaring that George W. Bush was the winner of Florida’s 25 electoral votes – to stand, giving Bush enough Electoral College votes to become president.
The court’s decision came after the Florida Supreme Court had ordered a statewide manual recount of all votes. The SCOTUS stayed that recount while considering the arguments – it later ruled that a constitutionally valid recount could not be completed by the deadline imposed by Florida law, and that the Florida Supreme Court decision ordering the recount violated the Constitution’s Equal Protection Clause.
Technically, the Supreme Court didn’t dismiss the case, but remanded the issues to the Florida Supreme Court for further proceedings. At that point, then-Vice President Gore dropped his challenges, deciding that further litigation was futile.
The Supreme Court justices were far from unanimous in deciding Bush v. Gore. Justice Ruth Bader Ginsburg joined a dissent filed by Justice John Paul Stevens – as did Justice Stephen Breyer – and also filed her own dissent. Justice Stevens called the decision a “federal assault” on Florida election procedures that neutralized state judges, eliminated “complete certainty” about the actual election winner and significantly damaged “the nation’s confidence in the judge as an impartial guardian of the rule of law.”
We should also look back to this year’s New York Democratic Primary, held on June 23, which took more than six weeks to decide. The flawed primary is certainly a preview of what we can expect throughout New York and the country after Nov. 3.
Moreover, lawsuits are pending in many state courts over election procedures, including in crucial battleground states like Pennsylvania, Wisconsin and Michigan. Litigants in some of these cases have already expressed their intent to appeal the state court decisions to the Supreme Court before Election Day.
And of course, the candidates themselves have also publicly warned of post-election legal actions.
All this brings us back to the reality that judges in the state and federal courts will be placed in the position of telling us which votes count, and when. Will Justice Stevens’ concerns over the nation’s confidence in impartial judges be proven correct? Will candidates accept each judge’s ruling, decide against endless litigation and put the best interests of the nation first?
Or will the nation be left in limbo, seeking closure?
None of us know for sure what’s coming. But what’s certain is that the path ahead is filled with challenges.
Michael H. Sahn, Esq., is the managing member of Uniondale law firm Sahn Ward Coschignano, where he concentrates on zoning and land-use planning, real estate law and transactions, and corporate, municipal and environmental law. He also represents the firm’s clients in civil litigation and appeals.