In 2000, the Supreme Court shockingly stepped into the disputed presidential election and all but declared George W. Bush the winner. At the time, some called Bush v. Gore a self-inflicted wound that would hamper the court for years to come. Yet as America prepares for the 2012 campaigns, the Supreme Court appears poised once again to exert an outsize influence on our national elections.
The court won’t directly decide a case that effectively determines the winner in the 2012 presidential race. Of course, that’s what experts said before November 2000. Like that fateful election, this one looks to be very close, with the winner potentially determined by a relatively small number of votes in a swing state like Ohio or Florida. And despite all the hand-wringing of recent years, our elections are still dependent upon unreliable methods of vote tabulation. According to a recent study of the 2010 elections in New York, up to 60,000 votes went uncounted because of a software glitch on the new optical-scan voting machines that were supposed to save us from the nightmare of hanging chads. While a reprise of Bush v. Gore remains unlikely, few election experts would be surprised if another dispute over uncounted ballots finds its way into the federal courts.
Even if the Supreme Court officially stays on the sidelines this time around, the justices will almost certainly affect the presidential election by their rulings on several hot-button issues. Over the past few weeks, the court agreed to hear major cases dealing with President Obama’s signature health-care reform and immigration, both of which are expected to be central issues in the 2012 campaign. If the court upholds President Obama’s health-care law, it will stimulate turnout by Tea Party conservatives who believe the requirement that everyone have insurance is the epitome of government tyranny. Many of those Tea Party adherents might otherwise stay home rather than vote for a fair-weather conservative like Mitt Romney or Newt Gingrich.
In other words, if Obama wins in the health-care case, it may cost him his job.
The Supreme Court is also going to decide whether Arizona’s harsh anti-immigration law is constitutional. Again, Obama might win most by losing. If the court disagrees with the administration and finds Arizona’s law constitutional, that will surely agitate Latino voters, who lean Democrat. A strong Latino turnout in swing states like Nevada, Colorado, or New Mexico could be exactly what Obama needs to squeak out a victory in the Electoral College.
The court could also have a profound influence on which party controls Congress. The justices have agreed to hear an important case out of Texas involving a challenge to a court-drawn redistricting plan that buoyed Democrats’ hopes of winning back the House. The plan created three heavily Latino congressional districts that Democrats in the Republican-dominated state expect to win. Republicans claim the lower court exceeded its authority by adopting the plan and hope the Supreme Court will allow them to redraw the map. If successful, they are certain to establish new congressional districts in which Republicans have a greater chance of winning—and which, not coincidentally, will all but guarantee that Republicans hold on to the House.
Regardless of the outcome of these controversies, the court is already assured of playing a major role in the 2012 election thanks to its decision nearly two years ago in the Citizens United case. The 2012 campaign will be the first presidential election in decades in which business corporations are allowed to spend unlimited amounts of money. We’ve already seen the emergence of hundreds of Super PACs– a special type of political action committee that, unlike traditional PACs, can accept donations of any size. Both Democrats and Republicans have formed Super PACs, but many political scientists predict that wealthy, Republican-leaning business interests will benefit the most.
The Supreme Court’s decision in Citizens United is also likely to affect the makeup of the Senate. Last month, the Chamber of Commerce began running advertisements targeting Democrats in pivotal Senate races—part of the chamber’s grand strategy to spend more money than ever before in Senate and House races to promote pro-business candidates. Before Citizens United, the chamber was limited in how much corporate money it could raise and spend in the weeks prior to federal elections. Now, however, the chamber has been freed from such restraints, and an unprecedented amount of corporate money will flow through the chamber and other organizations with the goal of influencing the elections.
In 1962, Justice Felix Frankfurter cautioned against the Supreme Court entering what he called the “political thicket.” The justices never heeded Frankfurter’s warning. Indeed, with seemingly every political issue ultimately decided by the Supreme Court, Frankfurter’s belief that the court could stay above the electoral fray seems quaint and outdated. Heading into the 2012 election, it looks like the Supreme Court is once again set to play a powerful role in deciding who wins and who loses come Election Day.
