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Illustration: Sarah Grillo/Axios

The Supreme Court isn't just one of the most pressing issues in the presidential race — the justices may also have to decide parts of the election itself.

Why it matters: Important election-related lawsuits are already making their way to the court. And close results in swing states, with disputes over absentee ballots, set up the potential for another Bush v. Gore scenario, election experts say.

2020 could be the perfect storm, with states rushing to prepare for mass vote-by-mail operations for the first time, dozens of last-minute changes to state election rules, tight races in several swing states, a strong likelihood of protracted vote-counting, and two candidates who are already ready to fight it out in court.

  • "Uncertainty breeds litigation," said Edward Foley, an election law expert who directs the election program at Ohio State University. The more the litigation and the greater the political will to win, the more likely cases will end up before the Supreme Court, he added.

What we're watching: The court could play a big role even if it doesn't end up with a big post-election case like Bush v. Gore. Election-related cases are already working their way up toward the high court.

  • Pennsylvania Republicans are asking the Supreme Court to review a ruling that gave voters an extra three days to return their ballots in the state, for example.
  • Even the court's inaction can have real-world consequences — in July, the justices declined to get involved in the dispute over restoring felons' voting rights in Florida. That left rules in place that make it harder for those people to register.

Between the lines: All of this tension is heightened by the vacancy on the court and the prospect that President Trump may be able to fill that seat before the election.

  • If the court were to hear a big election-related case without a ninth justice in place, there'd be at least the possibility of a 4-4 tie.
  • When that happens in normal cases, the ruling from the court below stands, but no precedent is set — the same case can come back to the Supreme Court for a proper decision later. But that would be an untenable situation for an election, and Chief Justice John Roberts would surely do everything in his power to avoid it.
  • A court with three Trump nominees ultimately deciding the fate of Trump's re-election could have dire implications for public trust in the court. But a ninth justice may not be the deciding vote.
  • Just a few months ago, the court blocked efforts to extend absentee voting in the Wisconsin primary. Between that ruling, the decision not to intervene in Florida and striking down the core of the Voting Rights Act in 2012, voting-rights advocates had a pretty hard time at the high court even with Justice Ruth Bader Ginsburg on the bench.

The bottom line: Some experts argue that the odds of a close enough race in a decisive state, with sufficient grounds to settle it through litigation, are still low.

  • But "what is most likely to save us from a Twitterized Bush v. Gore 2.0 and possible post-election violence in November is neither an honest election system nor counter speech to combat election misinformation," election expert Rick Hasen writes in a recent report. It's luck.

Go deeper

Updated Jan 4, 2021 - Politics & Policy

More Republicans denounce GOP plans to challenge election results

Sen. Ted Cruz (R-Texas) speaks with Sen. Lindsey Graham (R-S.C.) on October 15 in D.C. Photo: Bill O'Leary-Pool/Getty Images

More than a dozen House and Senate Republicans over the weekend attacked plans by colleagues to object to certifying 2020 election results, calling the effort ineffective, dangerous or lacking in evidence.

Why it matters: Although nearly all lawsuits brought by President Trump, his allies and his legal team to challenge election results have been dismissed, a group of Republican senators led by Ted Cruz says they will oppose certifying Joe Biden's win.

2020 Senate fights spark breathtaking fundraising totals

Data: FEC; Chart: Andrew Witherspoon/Axios

The battle for control of the U.S. Senate has triggered unprecedented fundraising at the congressional level, with one Democratic candidate out-raising Al Gore in his presidential race just 20 years ago.

By the numbers: The top 10 Senate fundraisers in 2020 brought in more than double the money raised by the top 10 campaigns in 2018, raking in over $1 billion collectively, according to data filed with the Federal Election Commission by Dec. 24.

Jan 4, 2021 - Podcasts

Dominion Voting Systems CEO John Poulos talks elections, death threats and lawsuits

President Trump and his allies have continued to baselessly rail against Dominion Voting Systems, whose machines will be used tomorrow in the Georgia runoff elections that will determine which party controls the U.S. Senate.

Axios Re:Cap speaks with Dominion founder and CEO John Poulos about the controversies, the death threats and the "imminent" lawsuit his company plans to file.

Full transcript

Dan Primack: We're joined now by John Poulos, the founder and CEO of Dominion Voting Systems. So John, take me back a little bit. What was the moment when you realized that Dominion was going from a vendor in the election to a flashpoint, a public flashpoint in the election?

John Poulos: Well there, I think that there were a couple events, but it really hit the flash — the flashpoint was that press conference in Washington, D.C., at the White House, where Sidney Powell and others went in front of the national media and made some crazy false allegations directly about Dominion.

DP: When that happened, what was your internal monologue while you're either watching this or somebody is telling you that it happened.

JP: It was completely surreal. So I was watching it live. I had seen it being advertised. And I just couldn't believe what I was hearing. There were things being said about me personally, about the company I founded, that is so demonstrably false. And you know, there's 18 years of records of where Dominion was founded, why it was founded. And the level of falsity was — just reached the level that I had not previously thought would ever be possible.

DP: You know as CEO, you've got the public facing, which is what you're doing with me. But you also obviously have a lot of employees. Did you start getting questions internally from people saying, “Hey, is some of this stuff, right?” Or was there any kind of internal dialogue like that from the people who work for you?

JP: Well, there's certainly a lot of dialogue internally, and we were having company-wide conference calls very regularly. So, the first question: No. I mean, all of our employees know exactly where we came from and know all of our history and know everything about all of the checks and balances that exist in the U.S. election system, frankly, that was created after the fallout of the 2000 presidential election. The system has come such a long way. Really, the employee questions were all around what are we going to do about it and when are we going to start standing up for ourselves and rebutting a lot of these claims.

DP: Can you, for the layperson, just explain a little bit: Are all Dominion Systems the same? In other words, if I vote in Georgia, am I using the same sort of system as if I'm, say, in Michigan in a county where you guys work, or are they really county-specific kind of customized hardware and software?

JP: There are different flavors of variations of how different states choose to deploy our systems, but the fundamental tabulation technology is the same across states. So if you look at the case of Georgia, it's a good example. So we have two pieces of technology. One is all based around helping voters create a paper ballot. There's a lot of reasons why they do this. Some states do it by just a traditional pen and hand marked. Other states want a universal paper ballot that can be created regardless of a voter's ability, both language ability or physical ability. But the end of that process is a paper ballot that the voter is holding and touching and can look at the candidates that are written on that piece of paper.

The second piece of technology that we provide is all around the tabulation of those paper ballots. So it's a scanning technology that tabulates all of the contests and candidates that the voters vote for.

DP: One of the things you guys have said in some of your rebuttals is that while these are kind of technologically advanced machines, they are, to a certain extent, what we would consider dumb machines, right? In the sense of they're not connected to the web.

JP: Yeah, absolutely. And there's a good reason for that. So if you look at the last 20 years of evolution of elections in the United States, we had gone from a system where there were mechanical systems for a [unclear] with electronic voting where fundamentally the transaction between the voter and the cast record — what we call the cast record — was electronic and there was no piece of paper as the fundamental transaction.

There were a lot of issues that stemmed from the 2000 election on that and the lack of transparency. So the end result of that was a creation of a bipartisan federal commission that worked to create the definitive standards for national voting systems and election technologies.

That has been updated and continually is updated. It's several thousand pages with very strict instructions and requirements of what an election system must do and be capable of producing. That process also led to the creation of third-party accredited test labs. Professional test labs are able to test third-party tabulation equipment like from Dominion and do a complete and exhaustive test. These tests the first time through can easily take a vendor, uh, years to go through.

Once that independent test lab creates a thorough report, which by the way is publicly available on the EAC website, the EAC moves or does not move to certify, and the system becomes certified. Most states, it's a bit different in every state, have a similar certification process by which after that federal exhaustive federal certification process, certain states then will repeat and do variants of their own testing.

DP: Going back a little bit, you talked about the Sidney Powell press conference. And last month, you guys, Dominion, sent cease and desist letters to, among others, Fox News, OANN, to Powell. Are you planning to file actual lawsuits for defamation?

JP: Yes.

DP: Against who?

JP: Our focus right now is on Sidney Powell. And there's a very good reason for that. She is by far, in our opinion, the most egregious and prolific purveyor of the falsities against Dominion. Her statements have caused real damage. They're demonstrably false. Um, in our opinion, it's extremely easy to verify that we were not created in Venezuela.

That's just one of the many of the crazy allegations made against us. And we were originally quiet and we sat back as a company because our hope was that all of these claims would be filed in a process in court where procedure and evidence is important. And it's become clear to us that there is absolutely no interest to reveal this evidence.

And because we know it doesn't exist and there's no effort to actually put it in front of a court proceeding so that these allegations and all of the evidence can follow a proper process and be litigated right to the end. And because of that, that's why we're filing.

DP: When do you expect to actually file?

JP: It's imminent. So we're going to file when the lawyers are ready. But it's imminent.

DP: Why not also file against, for example, Fox News. OAN Newsmax. I know they all published or aired rather that little kind of two-minute fact check, but why not file against them as well?

JP: Well, let me be clear. The damage has been done. And in some cases, some media outlets are continuing to promote this damaging type of false narrative. I also want to be clear that we're looking at everybody, that not just every actor that has made these types of false allegations about us and also the news media outlets that have allowed these allegations to be amplified unfettered and unchecked. And we've got a pretty substantial legal team looking at that. And as I said, our priority is Sidney Powell, but, uh, the legal team is going to be thorough and exhaustive.

DP: Do you find yourself a little bit on this between a rock and a hard place in the sense of just hypothetically, if you, for example, wanted to sue President Trump, who has said stuff about Dominion, including at the call that got leaked yesterday, that because of what you guys do and because of who your clients are, and that you have to, you know, pitch to states that are controlled by Republicans and controlled by Democrats, secretary of states, etc., that if you're viewed as, for example, suing Donald Trump, it could make it much harder for Dominion in the future to get business from a so-called red state?

JP: Absolutely. So we do business in red states and blue states. Our customers are from both sides of the aisle and in many cases bipartisan. The sanctity of the electoral process and the concerns that come and that arise in every election to us is a very important part of the process.

This is not the first time that losing candidates have asked questions around what happened with an election in terms of process and how tabulation worked. And we feel that's a very important part of the process. This is something different, however. This is spreading false information that's knowingly false with malicious intent. This is not asking how do I know all the ballots were counted. We have recounts for that. We have audits for that. These questions have been answered over and over and over. In a normal election protest, these claims are filed in an appropriate court of law where process and procedure is followed so that concerns can be heard and prosecuted properly. This is something completely different.

DP: You said you're looking at everybody. Is a lawsuit against President Trump still possible?

JP: Look at the end of the day, it's our legal team that's taking the lead on in terms of where and who.

DP: They are, but you're the one who's going to have to make the, you'd have to make the call on whether that goes through or not.

JP: Of course. We will have to make a call before we make any filing. Right now, the only thing that I can commit to is a complaint that we will file against Sidney Powell.

DP: John, why do you think that, as you said, losing candidates have complained about elections and election processes for years, because that's kind of what losing candidates do. Why do you think, though, kind of these rampant conspiracy theories, you know, the Hugo Chavez piece of this, why do you think that has taken root with the American public or at least a significant portion of the American public?

JP: Certainly, I have to think that it's taken root because they have been repeated over and over and over on various news networks by most prominently by Sidney Powell. And stated with, with complete certainty with claims that something, to the effect of, you know, we have the evidence and we will be releasing it tomorrow. That evidence wasn't released because it doesn't exist. We were not founded in Venezuela. We had nothing to do with Venezuela. We've never run an election in Venezuela.

We are a U.S. company. Prior to that, we were a Canadian company. I founded the company in Canada. These allegations that votes were somehow taken outside the county are nonsensical, let alone outside the country. The votes that voters cast are on paper ballots in Michigan, in Georgia, in Pennsylvania, Wisconsin. And, as always, those machines that count the balance and the actual paper balance that were created by voters that were cast by voters are in the possession and the custody of local election officials in front of bipartisan poll watchers.

DP: So when President Trump yesterday makes the comment, or two days ago, technically, makes the comment that Dominion employees came in and “took inner parts of the machine out and replace them,” you say, what?

JP: Yeah, it's completely false. The equipment has been in the custody of officials in Georgia since they were, since it was delivered in sometime in 2019. And not to mention that a lot of this equipment is actually being used right now in the runoff election. So we have the president being given information by people like Sidney Powell that is 100% false.

DP: Final question for you, John. The company has talked about you, certain employees receiving death threats. Can you talk a little bit about how this has impacted your life, your employees' lives? And if those sorts of threats have persisted?

JP: It's affected us all, and it's something that we're very angry about. It was completely unnecessary. Certainly we're not, it's not limited to us. Our customers are also experiencing the same thing. And for this to happen when our only job is to help people vote and to provide a very transparent tally that can be verified through hand count and recounts as has been done hundreds of times across the country, including three times in Georgia, is completely unnecessary.

In the most extreme case, we have an employee that hasn't been able to return to his house since before the November election. He still has people driving in front of his house, and his life has been completely uprooted.

DP: John, thank you so much for taking the time today.

JP: Thank you very much.