Supreme Court can disqualify Donald Trump and Mike Pence after Electoral College vote

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.

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30 Comments

  1. Stephanie on December 17, 2016 at 4:10 pm

    Is there anything we the people can do to bring this to supreme court? After all it is “for the people”. There has got to be some kind of right we have to fight this based on the vote purging, uncounted ballots, conflicts of interest, russian interference and so many more. Anything anywhere constitution or not that protects us and gives us the right to do what OUR government isnt doing for us? Please tell me yes, and what it is….

  2. Sharon on December 17, 2016 at 4:36 pm

    Can the Supreme Court demand that trump put all his business dealings into a blind trust if he wants to be president, as well as make him produce his tax returns to see why he’s so secretive, and to investigate all his conflicts of interest? It seems to me that trump wants all the perks, but none of the responsibilities of the presidency.

  3. Louise Nicholson on December 17, 2016 at 4:56 pm

    Thank you, Mr. Palmer. I really appreciate the way you think. 🙂 it is my understanding that we will not know the votes until Congress reconvenes at the beginning of January. Does that effect the timeline of the judicial challenges? Will there be too little time to review, consider, and intervene?

  4. Debra Ann Cohn on December 17, 2016 at 5:34 pm

    Is it possible to petition the supreme court to take this under consideration or does it have to come from a lawyer? In that case, would it be a good idea to petition Lessig and his colleagues to take it up?

  5. Claudia Krieger on December 17, 2016 at 5:57 pm

    Thank you once again, Bill! Excellent reporting!

  6. William Charles on December 17, 2016 at 6:17 pm

    I hope so!!

  7. Rosalyn Dewey on December 17, 2016 at 6:29 pm

    This is hope to lift America out of the gutter! Whether SCOTUS chooses to decide a new, clean election or chooses the President wouldn’t matter.

    It would be considered America again! For now, we are tainted with a horrible stench of foreign thugs, ego-maniacs and Corporate greed multiplied.

    We do not want Putin or his puppet, Trump and family to over-run our Country and our White House! Their ties with fascism, foreign and domestic Oligarchs who desire to further increase the disparity between the wealthy and the poor, and increase the burden to the middle class will further destroy our hope and Country! This is NOT what our people voted for!

    Trump-Pense ticket ran for elevating the middle class, cleaning up the Corporate “swamp”. He promised not to touch SS or Medicare!! He has already betrayed those promises. He has surrounded himself with Russian-leaning, White Supremacists, and bragged upon Putin as a better leader than our own President! He refuses to clean up his conflict of interests and forces nepotism into our Presidency. Surely he will not be allowed so many infractions, while Nixon was threatened with impeachment for less! At least, Nixon was for America! Never would he have supported a Russian thug or suggested we view him as our Democratic friend or allegedly collude to involve him in altering our American election!

    This is unacceptable to any loyal American! And, we didn’t know these things, when we voted this year.

    • Beatrice DuPont on December 18, 2016 at 11:39 pm

      You did know Trump’s father was in the KKK, didn’t you?

      • Qahir Makhani on December 20, 2016 at 4:50 pm

        Yup, while his father was a draft-dodger and the Germans kicked out grandpa for doing the same with them…

      • Ros Dewey on December 20, 2016 at 5:37 pm

        Yes, Beatrice, I think many millions agree that Trump who has stated many times, “Idolizes his father.”, will not let go of conspiracy theories and Facist thinking. This IS who Donald Trump is! Really… a White Supremist with as much or more corruption as Putin. And if he doesn’t yet, wait for 4 years. He wants to be second to no one, especially in money. So far as Forbes can determine, Trump has a way to go, since Thug Putin has “distinguished himself as the richest man on Earth.” He’d fit right in with Trump’s cabinet, but Putin has no intention to be second to any one either. Does any one see a crisis here?

    • Bruce Walters on December 19, 2016 at 3:48 pm

      They will undermine and ruin this counrtry from their first day. It’s already being prepared for wide spread applications, from each of his horrible ‘qualified’ Cabinet members. Across the board. Any options we have to resist and deny this hostile take over of America, this new regime, must be pursued to the maximum effort. We may not survive four years of Hell, certainly not as the great nation we still are, before he tears it apart. He’s “making America great again”? That line was used by Adolf Hitler in 1939 for Germany, with truly tragic results world wide. Will our country become tragedy’s next victim? And lose our place in the world, to personal tyranny? This must be kept from happening – however we are able to. Now, and for the next four years if need be. Absolute misguided oppression cannot be allowed!

  8. Bonnie Moore on December 17, 2016 at 6:56 pm

    Interesting point of view. If someone files an action or emergency motion, they would still have to decide whether to take it up. Then they would have to decide the merits, and all of this would need to be done immediately.

    What concerns me even more is that Trump has financial obligations to Russians, or at least that has been suggested. With these obligations he can’t possibly take any adverse actions against the Russians for fear of having the notes called in. Rumor is that he also has obligations to the Chinese. This is such a serious conflict of interest, I would think he would be disqualified.

  9. James Ahtone Moulton on December 17, 2016 at 7:13 pm

    #DonaldTrump and #MikePence are disqualified and strongly banned from USA.

  10. Jackie Rankin on December 17, 2016 at 7:22 pm

    I like your articles a lot. You seem to have the news faster than anyone.

  11. James Lundgren on December 17, 2016 at 7:28 pm

    Very informative, Thank you. Most people, I believe were in the dark about this, and this may be a ray of hope.
    I suspect that most legal actions could drag out a lot longer than most people
    expect.

  12. Susan M on December 17, 2016 at 8:21 pm

    Lord, I just hope that someone, somewhere this evil man will be made to step down. With the popular vote so high for the Clinton ticket, she should become President.
    Donald Trump should be held responsible for his actions and tried for his actions. So should some members of the Republican Party who were involved with the rigging. Also the Director of the FBI should be held for his actions.
    Nobody ,no government, no political party should interfere with our elections. This has been a nightmare. Tho think that the members of the Electoral College have been threatened if they don’t vote for Trump. That right there is against our democracy. All should be held accountable.

  13. Virginia Pittmam on December 17, 2016 at 9:12 pm

    I would like to see the Supreme Court get involveded in this presidential election since Donald trump already has broken some of the President’s responsibilities

  14. calista cross on December 18, 2016 at 5:37 am

    Lets hope this can happen..How can this happen in AMERICA? Trump is the worst person ever running for this seat..,,he has no values..his kids will run the WHITE HOUSE..he will run this country the way he wants,,what is wrong with the people in this country,,Barack O brought us out of a mess,,from BUsh adm..please lets work on hacking, TRUMP,PUTIN..if it was the republicans all hell would take loose right now,,they would made it so hard for HILLARY and she should be our president,,we need to do away with electoral votes if this isnt done fairly and I know it wont,,do away with elcetoral votes,,HILLARY is the winner..TRUMP will win..it will all be done his way,,a DICTATOR..supreme court should be involved,,we have been done by RUSSIA./TRUMP,,how terrible is that? lets work together to rid of trump and save our country,,

    • Dr. Jeffrey Day on December 19, 2016 at 1:53 am

      Looks like a Philippines look-alike! Trump is a politicized Duterte. Duterte is a self confessed murderer, Trump is a fraudulent liar. Exxon Mobil chief as Secretary of State, that’s a huge joke. Exxon Mobil caused the biggest/second biggest environmental disaster of 20th century, will their chairman cause the biggest political disaster of 21st?

  15. Michelle McKeen on December 18, 2016 at 5:43 am

    Thank You

  16. Sara Ogle on December 18, 2016 at 6:55 am

    The Republican do not care that Russia meddled in the election. They care about 1 thing power. Mitch MC Connelly knew about the hacking, he or any of his committees will not be fair. It has to be an independent investigation, did anyone notice how nervous he was he threaten President when they were briefed on the foreign interference. He said he would go public and tell everyone Obama interred. The interference came from Trump, McConnell, Pribus, they have to be put on a witness stand. Then McConnell wife gets Secretary if Transportation.LOL. It is up to an outside committee independent not controlled by either party. AZ Does anyone remember “Trump I don’t even know Putin”

  17. flexdoc on December 18, 2016 at 7:09 am

    They have a way but do they have the will. It is often easier to do nothing than face the turmoil of doing the right thing.

  18. David on December 18, 2016 at 1:01 pm

    Please use your power of law and stop this man

  19. Genevieve Jewett on December 18, 2016 at 6:01 pm

    Donald Trump is acting in a dangerous manner… His contacts with leaders of foreign countries seems very dangerous… It bothers me that he is so friendly with Poutin, it seems strange & unusual.. He seems to defend the Russians while evidence points to the fact that the Russians tampered with our 2016 election… I am concerned about our national security… He has me very worried…In my 73 years I do not recall ever feeling concern about any candidate for President, but I have with Donald Trump..He seems to be ignighting hate & violence around the country…Please be aware of his actions…Thank you for your time..

  20. Galina on December 18, 2016 at 6:54 pm

    Precisely because of his record of non activism, Justice Roberts would most probably vote against a result which may have been brought about by foreign intervention. He’ll side with the best interest of his country, not with a party or the winner of a rigged election.

  21. Brookins, Patricia on December 18, 2016 at 9:26 pm

    Very informative. Thank you!

  22. Bob Gale on December 19, 2016 at 12:02 am

    I strongly wish that the SCOTUS would have the courage and wisdom to do this, because I don’t see this happening with Trump-Pence and their named appointees and supporters, including the current Russian government. I prefer truth to falsehood, transparency to opacity, all civil rights including women, the disabled, minorities, reasonable efforts for diminishing climate change soon, much better education, less economic disparity, and less expensive adequate universal health care. In other words, a rational, less selfish, less greedy, more enlightened approach to our country, other humans and species, and the entire planet.

    • Ros Dewey on December 20, 2016 at 5:19 pm

      I agree with you, Patricia. Now, how do we get the Supreme Court to step in and clean up this mess? They have the power. They can rule on this after the electorate lost courage.

  23. Patricia McFarlin on December 19, 2016 at 12:29 pm

    I believe that members of congress are involved in the hacking and McConnell today is trying to dismiss it.So Supreme Court Will be best chance.

  24. Victoria Shuts on December 20, 2016 at 3:32 pm

    Let’s bring it on!! How and who can initiate Supreme Court disqualification? Media has a clear admission from trump that he had and has a relationship with Putin. What more do we need to convict him of treason?

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