US Election Daily Update: Supreme Court may decide this election

Could this election all come down to this: the Fourteenth Amendment to the US Constitution?

With Hurricane Sandy ravishing the East Coast, and millions of voters likely to face difficulties in casting their votes, are we, asks Jack Houghton, about to see the Supreme Court play another central role in US history.

Brought up as they have been - especially culturally - in an Anglo-American society, teaching British students about the US system of Government is less about helping them unearth a new topic about which they know little, and much more about unravelling a series of tightly-held misconceptions learnt from a media that gives a skewed picture of how transatlantic politics works.

Uppermost among the misconceptions is the idea that the President is somehow omnipotent. Tagged as "the leader of the free world" - and without doubt exercising huge influence when it comes to foreign affairs - it surprises most to find out how constitutionally and practically limited the domestic powers of the President actually are.

Dislodging this President-centric view is done in large part by pointing to the extensive powers of the other branches of government, especially Congress, and by highlighting that, for all we may seek to tell the history of America through the actions and inactions of Presidents, it has often been a little-advertised institution, the Supreme Court, who has had a larger role to play. For example, civil rights - in the widest sense of that term - have been more significantly progressed and halted not by the likes of Lincoln and Kennedy, but by a slowly evolving panel of nine unelected justices.

Heading into this fascinating election, the Betfair market sees Obama (1.4640/85) holding a comfortable lead, and my excellent co-contributors, Paul Krishnamurty and Eliot Polak, with varying degrees of certainty, view those odds as justified.

However, with polls showing around a third of the Electoral College votes either tied, or within the margin-of-error, and the likely effects of the previously-reported Hurricane Sandy unknowable, I can't share their surety. In fact, in the last few hours, as I've watched on television as storms have ravished the East Coast, I've begun to think that the Supreme Court might be about to play another pivotal role in US history and help decide the outcome of this election.

Imagine the scenario. As a result of adverse weather, a number of polling stations are closed, especially those in Democratic precincts. Due to power outages and public-transportation cessation, a disproportionate amount of Democratic voters are effectively disenfranchised. What's more, electronic eligibility-checking and vote-counting is out of operation, which leads to questions as to the veracity of the vote, especially, again, in those Democratic areas.

Although this paints an extreme - and probably unlikely - picture of what the effects of Hurricane Sandy might be, it is worth remembering that any perceived irregularity in a key state, however small, would likely spark a legal challenge from the losing side that would have to be judged by the Supreme Court.

It wouldn't be the first time it had happened, of course. The Supreme Court intervened in 2000 to halt the Florida recount, handing Bush the Presidency. The legal arguments there centred on the Fourteenth Amendment, and in any of the scenarios above, the same ground would likely be in play: with the justices asked to consider whether any citizens have had their privileges abridged.

All of this, of course, smacks of some over-dramatised episode of the West Wing. The more likely outcome on November 6th is that we will see an uncontested vote, with no doubt as to whom the next President will be.

But then, it all adds to the increasingly hazy picture of who is likely to win this thing, which is why, as much as I think Obama is the most likely winner, those odds of 1.4640/85 still look very short to me.