Some have speculated that the Supreme Court has kept its fall schedule light in case it decides to take up litigation that could affect the outcome of the 2024 presidential election. Yet there is reason to believe that the court will stay out of the election in any major way unless we have a close election à la Florida in 2000 or in the unlikely event that elected or election officials seek to subvert the outcome of the vote. The greatest chance for a major Supreme Court intervention fizzled last week, when the Pennsylvania Supreme Court declined to get involved in a dispute over the treatment of certain mail-in ballots. Although this decision may have been a loss for voting rights, it should go without saying that elections are better when they are decided by voters rather than courts.
In the run-up to the 2020 election, the Supreme Court decided a large number of emergency election cases, but few such cases have made it to the court so far this election season. The reason is no mystery: In 2020, we were in the midst of the COVID pandemic, which triggered litigation when some states altered their election rules, such as by expanding mail-in voting opportunities, to keep people safe and healthy, and when others failed to change their election rules despite the pandemic.
This time around, there are fewer election changes and fewer serious election disputes in the courts. Republicans have filed a large number of lawsuits, but many of these appear either to be about political posturing (to bolster false claims by Republican presidential nominee Donald J. Trump that the system is rife with fraud) or to serve as placeholders for lawsuits that could be brought after the election in the event of a close race.
As we saw in the aftermath of the 2020 election, when Trump and his allies filed more than 60 cases attempting to overturn the election results, simply filing a lot of suits does not guarantee an entry ticket to the Supreme Court. Most importantly, the justices refused to take up a December 2020 action filed directly in the court by Ken Paxton, the attorney general of Texas, seeking to throw out the results from four states with Republican legislatures whose residents voted for Biden over Trump.
This election season, the case I was watching most closely came to an abrupt end last week. Pennsylvania law provides that timely arriving mail-in ballots will not be counted if the voter writes the wrong date or fails to date the ballot envelope. A lower state court had declared in an earlier case that the failure to count these ballots violated voter protections contained in the state constitution. After the state Supreme Court threw out that case on technical grounds, voting rights advocates filed a new suit directly in the state Supreme Court, asking it to take up the issue and resolve it before the closely approaching election.
Had the Pennsylvania Supreme Court agreed to take the case, this would have raised a thorny question left unanswered by the U.S. Supreme Court’s 2023 decision in Moore v. Harper: To what extent may state courts rely on state constitutional voting-rights protections to trump state statutes? Given that we expect thousands of misdated and undated but timely mail-in ballots in Pennsylvania this election season, and given Pennsylvania’s potentially critical role in the Electoral College, a ruling in the case had the potential to be outcome-determinative.
The state Supreme Court on Saturday, however, refused to take up the case, holding that the timing of the petition came too close to the election: “This Court will neither impose nor countenance substantial alterations to existing laws and procedures during the pendency of an ongoing election.”
Although this decision means that Pennsylvania voters mailing in ballots face the risk of disenfranchisement, it also makes postelection litigation from Pennsylvania much less likely and thus U.S. Supreme Court involvement unlikely. (SCOTUS will have the chance, after the election, to consider taking up the question of whether the failure to count these ballots violates federal law, the Civil Rights Act of 1964, but that won’t affect the results of this election.)
With the Pennsylvania case out of the way, it’s unlikely that there will be major election-related litigation taken up by the Supreme Court before Nov. 5. As to postelection litigation, there is always the risk of another Bush v. Gore; if the election comes down to a few thousand votes or less in a state that is crucial for an Electoral College victory, then we’ll expect both sides to litigate as hard as they can to try to secure a favorable outcome. Indeed, one could imagine that if it all comes down to Pennsylvania and there is a pile of those timely but undated or misdated ballots, someone will sue on behalf of those voters in federal court, arguing that the ballots must be counted to protect the right to equal protection guaranteed by the 14th Amendment.
Barring a razor-thin victory in which the margin of error in running the election likely exceeds the margin of victory, it’s hard to see what might be litigated over. If Trump narrowly loses, he may continue to yell and scream about noncitizen voting, but he’s not going to be able to prove to a court that it is happening on any scale that could affect an election anywhere. As Trump-appointed Judge Stephanos Bibas wrote in rejecting one of Trump’s 2020 lawsuits out of Pennsylvania: “Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof.”
With bogus claims of fraud out of the way, the remaining risk on the horizon of Supreme Court involvement in the election could come if local or state officials, or Congress, fail to follow the will of the people when it comes to certifying the results. This is an issue that Donald Trump has put on the table by relentlessly questioning the legitimacy of elections. For example, his followers on Georgia’s election board have put new rules in place that could lead to some delay in the certification of the election in that state. And Mike Johnson, who could well remain speaker of the House when it convenes on Jan. 6, 2025, to count the Electoral College votes, has been frighteningly equivocal when asked to commit to a fair vote count.
If election officials seek to subvert the election outcome, Supreme Court intervention to stop them would be not only expected but welcome. In such a case, judicial involvement would be to protect the will of the voters, not to serve as an end run around them. Here’s hoping we can still count on this court to do that much.