How the US Supreme Court could get involved in the 2024 presidential election
The U.S. Supreme Court, faced with sagging public confidence and a deepening perception its decisions are politically-motivated, could soon play a critical role in how some 2024 presidential ballots are cast and counted and, potentially, how contested election results are certified.
"As prepared as anyone can be," said Justice Ketanji Brown Jackson, the court's junior justice, when asked recently about the flood of election-related lawsuits headed toward the high court.
Hundreds of state and federal cases involving disputes over the legitimacy of state voter rolls, access to voting places, and procedures for counting ballots are currently pending. A majority of them were brought by Republicans.
"It is a deluge," said Wendy Weiser, director of the Democracy Program at the Brennan Center for Justice, a nonpartisan think tank tracking the unprecedented volume of election-year litigation. "It is a strategy to sow disinformation and chaos in the election system."
Many of the lawsuits, predicated on "conspiracy theories" and advancing tenuous legal arguments, will ultimately be tossed out on technical grounds, Weiser said. But some may reach the justices with the potential to alter voting procedures in the final weeks of the campaign, depending on how they rule.
In one closely-watched case from Mississippi, the Republican National Committee has asked a conservative federal appeals court panel to prohibit the counting of mail ballots that arrive after Election Day, even if they are postmarked on or before Nov. 5. Roughly 20 states have long standing laws permitting late-arriving ballots, including Nevada, Virginia and Ohio.
"They're saying federal law says election day means election day, which means that anything that comes afterwards was not on election day," Weiser said of the GOP effort. "The argument has been raised in many cases across the country, and the courts have been routinely rejecting it. But given the context of the players involved, there's now not a 0% risk that this could happen."
In North Carolina, Republicans have sued state election officials seeking to remove 225,000 voters ahead of election day, claiming voter registration forms lacked the required identification information. The case is among more than three dozen GOP-led suits attempting to purge alleged ineligible voters, according to Democracy Docket, a left-leaning group tracking the litigation.
"It doesn't strike me as implausible that you would see a case like that sharply before the Supreme Court in late October," said University of Chicago law professor Aziz Huq.
While the justices have generally sought to avoid interference in state voter registration policies and election procedures close to an election – a concept known as the Purcell Principle – they have occasionally issued rulings that have resulted in major changes.
In the past few weeks, the court has issued decisions allowing Arizona to require proof of citizenship for state voter registration and rejecting Green Party presidential candidate Jill Stein's bid to appear on the Nevada ballot.
"They've never really explained what is the 'status quo' and what is 'last minute,' and they have been incredibly inconsistent in how they applied [Purcell]," said Caroline Fredrickson, a Georgetown law professor and former president of the American Constitution Society.
Other possible scenarios for Supreme Court involvement in the 2024 election could unfold after Nov. 5, as local and state election officials tabulate ballots and certify results.
"Imagine a state such as Georgia, where you have a state election board that has in the past weeks evinced a certain tendency to invite and foment election related litigation, resisting certification of a slate of presidential electors that the state election board disfavors," said Huq. "What happens then? Perhaps the Supreme Court would be called in to tell us."
The Electoral Count Reform Act of 2022 (ECRA) mandates that states must certify their results by Dec. 11, but does not spell out what would happen if they do not do so. There could be litigation to resolve the appointment of a state's electors for president by Dec. 16 when the Electoral College meets to cast votes.
The law explicitly directs disputes over certification to a three-judge panel for resolution with the U.S. Supreme Court getting the final word.
"It's certainly contemplated as a second layer fail-safe," said Weiser, "but I'm relatively confident that all the earlier layer fail-safes are going to hold and that we're not going to be in that scenario."
The court could also be asked to weigh in on any attempt by members of Congress to disqualify former President Donald Trump from a second term, if he were to win the election, during certification of the electoral vote on Jan. 6, 2025.
In the case Trump v. Anderson last year, the justices unanimously ruled that states could not disqualify a presidential candidate as an "insurrectionist" under Section 3 of the 14th Amendment, but it left open a federal process to make that determination.
Section 3 of the 14th Amendment says anyone who took an oath "as an officer of the United States to support the Constitution" and who then "engaged in insurrection or rebellion" or gave "aid or comfort to the enemy" cannot hold office.
Trump's critics allege he clearly violated Section 3 given his connection to the Jan. 6, 2021, riot at the U.S. Capitol and efforts to block certification of President Joe Biden's election victory.
Under the ECRA, if one-fifth of the members of the House and Senate voted to object to certification of Trump's electors on the grounds that he is ineligible to hold office, that decision could ultimately be reviewed by the Supreme Court.
"You could imagine a kind of Bush v Gore style, very, very rapid sequence of motions or petitions being filed and making their way through the court system," said Huq. "I can imagine that happening, although I think it's unlikely. But I suspect the Supreme Court would make short work of it."
