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VERIFY: If an election is close, could SCOTUS make the final decision?

The Verify team was asked by a viewer about the role of SCOTUS in deciding elections. The short answer is yes, but only in very specific situations.

WASHINGTON — Question: 

If an election is disputed, could the Supreme Court of the United States make the final decision? 

What about if a new justice, like Trump's nominee of Amy Coney Barrett, gets confirmed? Would they have to be recused?


Yes, the Supreme Court could make the final decision but is not part of the typical constitutional process. However, in 2000, the high court did rule on a dispute surrounding the recounting process in Florida, which solidified the win for President George W. Bush. 

This has only happened once, but legal experts told the Verify team that this historic SCOTUS ruling could open the door for future similar decisions. 

However, Supreme Court justices are not obligated to follow any recusal standards, even if they are newly confirmed. That being said, justices have tended to follow a set of rules, dictating when they recuse themselves. Meaning Amy Coney Barrett would not have to recuse herself if there is a disputed election.

RELATED: VERIFY: No, Amy Coney Barrett would not have to recuse herself if there is a disputed election that lands in front of the Supreme Court. Here's why


Article II, Section I of the Constitution

12th Amendment of the Constitution

Gore V. Bush, Landmark 2000 lawsuit. 

Gary Nordlinger, Adjunct Professor at The George Washington University

Susan Bloch, Professor of Law at The Georgetown Law Center\


A Verify viewer sent the team an email inquiring about the Supreme Court of the United States. 

"If the election is close in 2020," this person wrote, "will the final decision be made by the Supreme Court?"

To tackle this question, the Verify team started by looking at the constitution. The two most important sections for this topic are Article II Section I and the 12th Amendment. These two sections outline the normal process for electing a president through the "Electoral College."

Here's how the Electoral College works: Each state gets two electors, representing their two senators. The remaining electors are distributed across the country, based on their population size. In California, for example, there are 55 electoral votes, whereas there are only three in small states like Delaware. Washington, D.C. is not a state, but has three electoral votes. 

In the end, there are 538 electoral votes spread across the country. In order to win the presidency, one must receive a majority of these electors, which comes out to 270 votes. 

"The person having the greatest number of votes shall be the president, if such number be a majority of the whole number of electors appointed," the Constitution reads. 

So, what happens if nobody gets a majority? 

This could happen if a third party candidate stole a significant amount of votes from the primary candidates. Hypothetically, two candidates could also tie at 269 votes each, something which has never happened. 

In fact, the last time that a candidate failed to get a majority of the votes was in 1824, when there were four candidates running, causing a splintering of the votes. 

In that exceptionally rare situation, the decision would go to the House of Representatives. Each state gets just one vote for the candidate of their choice. That means the 53-person California delegation would get one vote, and the one-person Delaware delegation would each get one vote. 

So, how might the Supreme Court get involved? 

To answer this question, the Verify team spoke with Georgetown University Law Professor Susan Bloch. She said the first and only time SCOTUS got involved in a presidential election was in 2000. 

On election night, the vote was too close to call in Florida. That one state would tip the balance and give somebody 270 electoral votes. The dispute dragged on for more than a month. 

Democrat Al Gore wanted to continue the recount, whereas Republican George W. Bush wanted to stop the count. As the dispute continued into December, they were pushing up against a federal deadline. The Constitution mandates that a new president is inaugurated by January 20, no matter what. 

Surprising some legal experts, The Supreme Court decided to rule on the legal challenges, announcing that the recount should come to an end. This decision paved the way for Bush's victory. 

“That was very unusual," Bloch said. 

Before the historic 2000 election, Bloch said that most legal scholars considered a court ruling on an election unlikely. Now, she said the door is open and a precedent has been set. 

"That could happen here if there’s a dispute on the counting of the ballots in any state or many states," she said. 

Ultimately, the answer to this Verify question is yes and no. A Supreme Court ruling is not designated as a part of the Constitutional process when it comes to selecting a president. 

However, this body could play a crucial role in resolving legal disputes among candidates. It's only happened once, but our legal expert said that it may have set a precedent.

“The nice tradition of conceding might be in some jeopardy,” she said.

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