Whether or not the Electoral College gives two hundred and seventy votes to Donald Trump on Monday, the battle over the 2016 election result may just be beginning. Some who oppose Trump were disappointed that President Obama made no move to stop him during his press conference on Friday, but the Constitution gives Obama no power to prevent Trump from taking office. That power rests with only one entity: the Supreme Court. Even with its current eight members, the court can still pick the next President. And there is evidence that the case may be put in front of them.
Harvard Professor and leading Constitutional scholar Lawrence Lessig stated on his verified Facebook page on Friday that “Trump’s foreign ties raise a constitutional bar to him being president” and posted a link to a Brookings Institution article to make his case. Lessig also claims to be in close contact with a number of members of the Electoral College. If he decides to contest the Electoral College result in front of the Supreme Court and uses one or more Electors as aggrieved party, the court could opt to hear the case.
That may sound like a lot of ifs, but Lessig is far from the only individual who can attempt to contest the election result in front of the Supreme Court. In fact, though it very rarely happens, the court can decide to simply take on the election result of its own accord. Constitutionally, the Supreme Court can do essentially anything it wants – evidenced by its decision to grant itself the power of judicial review two centuries ago. So let’s say the Supreme Court does end up visiting the election result before Inauguration Day. What then?
Let’s say the Supreme Court decides that Russia’s overt effort at rigging the election on Donald Trump disqualifies him from being the winner of the election. Or alternately, let’s say the court decides that the entire Trump-Pence ticket is disqualified because Russia intervened on behalf of the ticket. Do they demand that Trump show his tax returns to the court, in order to prove that he doesn’t have the kind of financial ties to Russia that would make him complicit in the rigging by default? Do they instead simply name Hillary Clinton the winner, under the premise that she would have won if not for the illegal election sabotage by a foreign power?
There is already an existing lower court ruling in which the results of a state senate election were reversed based on election rigging, giving the Supreme Court precedent for overturning this election result and naming Clinton the winner if it wants. Alternately, the Supreme Court could order a new election of some kind, which would require establishing unprecedented parameters for carrying out such a ruling. At first glance these scenarios all seem unlikely, but again, the high court can do essentially anything it wants – so long as the majority of its members view that action as being within the spirit of the Constitution. The question is whether it would be willing to.
Even with eight members, the Supreme Court would simply need a 5-3 ruling to strike down the Trump-Pence victory. Those five votes would need to be liberal Justices Ginsburg, Breyer, Sotomayor, and Kagan, along with moderate swing vote Anthony Kennedy. In contrast, conservative Justices Thomas and Alito would almost certainly side with Trump, while the moderately conservative Chief Justice Roberts has a history of non-activism in his rulings and would seem unlikely to strike down an election.
It would be difficult if not impossible to assign odds of the Supreme Court intervening and disqualifying the Trump-Pence ticket based on the election itself having been compromised by a foreign power, beyond pointing out that no such thing has ever previously happened in the history of a U.S. Presidential election. But regardless of the odds, the bottom line is that it is a possibility. And if the Electoral College does confirm Donald Trump, we’ll need to keep an eye on the various individuals who oppose Trump and who may try to put this in front of the court immediately thereafter.