The 539th Electorate? An analysis on Judicial Activism in Elections

Paris Nguyen is a junior in the School of Foreign Service studying International Politics and serves as an assistant editor for GUULR.

At the end of the night on November 8th, rather than there being a projected winner of the 2020 U.S. presidential election, there was contention, uncertainty, and most importantly, numerous legal questions awaiting the courts. However, the U.S. Supreme Court did not accept any challenges to the presidential election this time around. The role of the judiciary in elections does not exist in the U.S. Constitution and has, consequently, never been clearly defined. In the past, the Court had decided on a few landmark election cases but, in the end, the question of the judiciary’s role in the election process remains unclear today. In analyzing a few vital decisions from the Supreme Court, it becomes evident that the judiciary should practice judicial activism to protect votes and minimize corruption. Beyond those issues, the Court should remain reasonably uninvolved to maintain independence from politics. 

Minority protection in elections is an area that calls for judicial activism. In Harper v. Virginia Board of Elections, the Supreme Court ruled a $1.50 poll tax unconstitutional because it violated the Equal Protection Clause.[1] While the poll tax was not explicitly racially discriminatory, it inhibited voter participation from economically disadvantaged groups that were typically minorities. The court established the precedent that the affluence of the voter or the payment of any fee as a standard for voting constitutes a violation of the Equal Protection Clause.[2] The justification for this judicial involvement is considered as minority protection and set the future precedent to protect economically disadvantaged groups. Applying this idea forward, the courts should always practice judicial activism when taking cases concerning the right to vote. 

Political corruption in elections necessitates judicial activism as well. In McConnell v. Federal Election Commission, the Supreme Court upheld the ban on unrestricted soft money donations, justified by the government’s legitimate interest in preventing corruption by large financial contributions.[3] The Court’s activism in this situation was necessary as it helped to minimize the corrupting influence of big donors in politics. Another similar situation of political corruption arose regarding districting of Alabama’s senatorial districts where every district was represented by one senator regardless of its population. The legislature had been reluctant to redistrict because the current status quo gave more power to the rural areas where wealthier residents typically resided. In an eight to one decision, the court held that Alabama’s districting scheme violated the Equal Protection Clause and consequently required Alabama’s legislature to redistrict based on population.[4] In this case, the Supreme Court again stepped in to minimize the Alabama legislature’s attempt to give more voting power to the wealthy. In the two cases presented, the court justly utilized its power to minimize political corruption to promote society’s best interest. However, when it comes to other issues outside of the scope of minority protection or corruption, the court must tread carefully. 

Excessive judicial involvement in elections could make constitutional law appear as nothing more than just politics by another name. In Bush v. Gore, the U.S. Supreme Court ruled the Florida Supreme Court scheme for recounting ballots as unconstitutional because of the different standards applied from ballot to ballot and precinct to precinct.[5] There was consensus that the Florida Supreme Court issuing the recount was unconstitutional because the State Supreme court created new election law, a power only granted to the state legislature. Furthermore, the court ruled the Florida Supreme Court’s actions unconstitutional by a vote of seven to two. However, the court then went further to state that no constitutional recount could be fashioned in time.[6] This five to four ruling to stop the recount is where the case became contentious. As a direct result of the Supreme Court, the recount never happened, and George Bush was declared the winner of the election. Whether the recount would have changed the results or not, the world will now never know. In this case, an overreach of judicial activism that stopped the recount made the court the most important actor in the 2000 election, a situation that should never have occurred

The U.S. Supreme Court’s rejection of election cases pertaining to the 2020 election marks a step in the right direction of limiting judicial activism in election matters. After the 2020 presidential election, three primary cases came about that the court rejected. The first, Kelly v. Pennsylvania, which attempted to prevent Pennsylvania from certifying its election results due to its no-excuse absentee voting policy violating the US Constitution, was denied.[7] Texas v. Pennsylvania, which similarly attempted to nullify Pennsylvania’s election results, was denied for lack of standing.[8] Lastly, Trump v. Wisconsin Elections Commission was denied by the Supreme Court and declared moot for its wrongful application of the Electors Clause.[9] While all three cases varied in detail, their purpose was essentially the same: to change the results of the 2020 election. The Court made the right decision in avoiding these cases altogether because any decision from the Court would have been charged as partisan. In short, the Justices would have likely been accused of basing their decision on their political beliefs rather than actual Constitutional law, as their decision could have very well changed the outcome of the election in favor of their preferred candidate. In no situation could the Court have ruled without further complications arising as a result of its decision.

The Court’s role in elections should primarily be ensuring voter enfranchisement and preventing political corruption. With election issues unrelated to those two areas, however, the Court should remain minimally involved because it is important that the Court remain independent from politics. Rather, it is better to leave it to the legislatures to settle contentious election issues because they are elected representatives and can better carry out the will of the people. Non-elected judges should not affect the outcome of an election, especially since the president is elected by the people, not the courts.


[1] Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966).

[2] Id.

[3] McConnell v. Federal Election Commission, 540 U.S. 93 (2003).

[4] Reynolds v. Sims, 377 U.S. 533 (1964).

[5] Bush v. Gore, 531 U.S. 98 (2000).

[6] Id., at pg 121.

[7] Kelly v. Pennsylvania, 240 A.3d 1255 (Pa. 2020), cert. denied, 592 U.S. _ (U.S. Feb. 22, 2021) (No. 20-810).

[8] Texas v. Pennsylvania, No. 22O155 (U.S. Dec. 11, 2020).

[9] Trump v. Wisconsin Elections Commission, 506 F. Supp. 3d 620 (7th Cir. 2020), cert. denied,592 U.S. _ (U.S. March 8, 2021) (No. 20-883).

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