Tribune. Even before the interminable election day of November 3 and following, judges were already at the heart of the US presidential election. Federal judges had confirmed the validity of the postal votes in Pennsylvania, which proved to be decisive for Joe Biden’s victory. The Texas Supreme Court had authorized the vote by ” drive through ” [les bulletins de vote remplis sont placés dans des boîtes de dépôt], contested by Republicans. That of Pennsylvania had allowed postal votes to be counted up to four days after the date of the election.
Several cases are still pending today, in particular because the Donald Trump camp has appealed to the Supreme Court of the United States against decisions that are unfavorable to it. What is at stake in this situation of political tension almost unmatched in American history is who should be the guardian of the elections.
No perfect solution
In the history of democratic countries, two possible answers have emerged: political control and judicial control. In the first case, the control of the elections is entrusted to the main parties concerned: the democratically elected bodies. Legacy of the verification of credentials, which is at the origin of the sovereignty of the parliament in England as in France, the parliamentary electoral dispute responds to the desire to protect the representative bodies of the people from outside interference – the British Crown at the end of the XVIIe century, the French “parlements” (tribunals) that we were suspicious of after the Revolution. This solution was gradually abandoned by these two countries, but it was maintained in certain European states such as Italy, Belgium and Luxembourg, where the choice was made to keep these political disputes in the political sphere.
But the problem of the partiality of these bodies, both judges and parties, was raised and the control of the elections gradually entrusted to the courts. This is particularly the case in France, where the Constitution of the Ve République entrusted the Constitutional Council with the role of judge of national elections. It is the second option, that of a judicial control of the elections, which today is largely in the majority. Whether they are specialized courts or ordinary judges, the judiciary, through its independence, seems best able to prevent “The foxes watch the henhouse”, in the words of Judge John Paul Stevens [disparu en 2019, il a siégé à la Cour suprême américaine de 1975 à 2010].
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