Three things are true about the current Republican-controlled Supreme Court.

The first is that in 2020, when outgoing President Donald Trump urged his fellow partisans on the court to overturn his defeat in that year's presidential race, Republican justices failed to do so. Despite everything this court has done before and since to undermine democracy and enact Republican policy proposals, even these justices have been reluctant to join in a coup. Joe Biden won by such a margin that even this court did not question his victory.

The second truth is that in 2000, when the election was much closer and depended on the outcome in a single state, the Court awarded the presidency to Republican George W. Bush Bush v. Gore. All five justices, who normally voted for the results favored by the Republican Party, were in the majority bushand all four justices, who normally supported Democratic Party goals, dissented. The majority's argument was widely ridiculed, not least because it appeared to abandon longstanding conservative principles to achieve a partisan goal.

And then there is a third reality of this court: Over the past year, the court has done everything it can to protect Trump from the legal consequences of his behavior.

Last March, the Colorado Supreme Court ordered Trump to be disqualified from the election on the very convincing argument that by inciting the January 6 insurrection, Trump had violated the 14th Amendment's ban on senior officials , who would have “engaged in insurrection or rebellion against” the United States In the US, five Republican judges have effectively neutralized this provision of the Constitution for the duration of the 2024 elections.

Likewise the opinion of the Court of Justice in Trump vs. the United States (2024) granted Trump broad immunity from prosecution for crimes committed while in office. The most amazing part of it Trump An immunity case found that if Trump were returned to office, he could give the Justice Department any order he wanted — even directing federal law enforcement to act “for an improper purpose” — and that Trump would be protected from criminal consequences give these orders.

Meanwhile, Trump is openly advocating for the arrest of his political rivals. He even suggested putting Republican Supreme Court critics “in jail.”

Currently, polls show that the race between Trump and Vice President Kamala Harris will be more or less a coin toss. The country could easily be in a different state on election day Bush v. Gore Situation. And if Trump loses, his behavior after his defeat in 2020 suggests he will eagerly petition a Republican Party-controlled Supreme Court to overturn the will of the voters.

The only uncertain question is whether these justices would join him in a second attempt to overturn the results of a presidential election.

A coup is much more likely when the election is very close

In retrospect, the result is in Bush v. Gore was not surprising. In 2000, after all the votes from the other states were counted, the winner of the presidential election decided solely on who won Florida. And early counts in that state showed Bush leading by 1,784 votes (that lead eventually shrank to 537 votes).

The justices who wanted to make Bush president didn't actually have to do much to ensure his victory. All they had to do was maintain the status quo and prevent Florida from recounting the votes to potentially put Gore over the top. And the five justices in the majority did just that, ordering the state to stop a recount that could have shown that Gore, not Bush, was the true winner of the election.

Of course, the court's decision was difficult to justify legally. It was unusually radical to accuse Florida of failing to apply “uniform rules” when recounting ballots and to claim that any state that uses slightly different procedures in one county than another is violating the Constitution.

If this rule were universally applicable, Democrats could have used it to make American voting law much more egalitarian and progressive. But the five justices in the majority made sure that wouldn't happen, ruling that “our considerations are limited to the present circumstances.” bush It was a one-off decision to push a radical theory of equality for exactly as long as it took to get a Republican into the White House and then immediately put that theory back at the top level.

But the cynical nature of the Court's decision did not change the fact that it was very easy for five justices to find a way forward after they committed to making Bush president. Here, too, they just had to ensure that everything stayed the same until Bush was officially declared the winner of the election.

Compare this result to the numerous election disputes that resulted from the 2020 election. While several states were close, Biden claimed a 306-232 victory in the Electoral College. To change the result, Trump's lawyers had to convince the justices to cast about 43,000 Biden votes in three different states.

That means the justices would have had to reach the implausible conclusion that in a presidential election, three states somehow violated either the Constitution or federal law so severely that they declared the wrong candidate the winner. The likelihood of such a cascade of errors occurring independently in multiple states is, to say the least, very low. And the justices probably realized that if they had tried to convince the American people that such an implausible series of events had taken place, large numbers of Biden's more than 81 million voters would have taken to the streets and refused , to accept the court's verdict.

So the more the 2024 election looks like 2000 and the outcome comes down to a single state, the more likely it is that Republican judges will intervene to ensure a Trump victory. The more Harris can increase the score, the more likely the court will let her win stand.

The court has already laid out the doctrinal framework for a decision to overturn the 2024 election

So what would a Supreme Court decision that overturns the 2024 election look like? Most likely it would look like a court battle in 2020 outside of Pennsylvania.

During the pandemic, the Pennsylvania Supreme Court ruled that certain ballots mailed before Election Day would be counted even if they did not arrive at the election office until three days after Election Day. Although the U.S. Supreme Court has the final say on matters of federal law, the highest court in each state has the final say on matters of state law. The Pennsylvania court's decision should therefore have been final because it was based on that court's interpretation of Pennsylvania state law.

Still, the Republican Party called on the Supreme Court to overturn the Pennsylvania court's decision and order those ballots to be thrown out, and several Republican justices urged their court to do so. Ultimately, the court dismissed the case as moot — Biden won Pennsylvania by such a large margin that it wouldn't have mattered what happened to those ballots.

The court has since made its decision Moore v. Harper (2023), a case in which the justices asserted new authority to overrule a state Supreme Court's interpretation of the state's election law. Although Moore Although the decision was widely seen as a victory for voting rights because it rejected a very aggressive attempt to strip voter protections enshrined in state constitutions, the court's opinion contains an ominous statement that says the U.S. Supreme Court will overturn the decision of a state's highest court affecting a federal election if… the state's decision “exceeds the limits of ordinary judicial review.”

The court didn't define that phrase — it just dangled it out there as a warning that the justices might exercise new and unprecedented power to rig elections at some point in the future.

In every election there will be some disputes over which ballots are counted, whether certain polling places should stay open late, and other routine legal disagreements that are usually resolved by state courts without too much drama. Now, however, a Republican-controlled Supreme Court is claiming the power to overrule any of those decisions and potentially rewrite a state's election law itself.

In other words, if the justices decide to overturn the 2024 presidential election, they will have given themselves a powerful new tool with which to find reasons to do so.