Election Update: Litigation and the Supreme Court's Uncertain Role
Welcome to the start of election week 2024. This week, we will address some questions looming about litigation, and the potential involvement of the Supreme Court.
There has been renewed focus this week over whether the Supreme Court will step into any election disputes, recalling the Court's decisive role in the 2000 Bush v. Gore case, which hinged on a 537-vote margin in Florida. With polling showing a tight race between the candidates, experts point out that modern elections are far more contested than in the past; from 1900 to 1984, 14 out of 22 presidential races were won by over 10 points, while recent elections have seen much narrower margins. Today, with a conservative majority on the bench, concerns persist that the Court could weigh in on a close race. Legal analysts, however, note that intervention remains unlikely unless a razor-thin margin and significant legal question arise, limiting the Court's likely role in deciding the outcome.
According to experts the current Supreme Court has adopted a more restrained stanceon election-related cases, particularly in its reluctance to alter state voting procedures close to election day. This approach reduces the chances of the Court intervening in state election matters, especially where only minor procedural disputes are at stake. Still, legal action is already brewing in critical battlegrounds like Pennsylvania, where recent disputes over mail-in ballot rules have prompted judicial intervention. In Bucks County, a judge extended the deadline for mail-in ballot requests after a lawsuit filed by Trump’s campaign and the Republican National Committee claimed that voters were turned away before the original deadline. Now, voters in the county have until Friday to request and return mail-in ballots—a change that could impact Pennsylvania’s crucial 19 electoral votes.
The Republican National Committee hailed the Bucks County extension as a win for voter rights, though which party ultimately benefits remains unclear. Democrats, who have leaned on mail-in voting in recent cycles, view it as a measure for voter access, while Trump and his allies have continued to voice concerns about mail-in voting, often suggesting it leads to voter fraud without concrete evidence. Bucks County officials supported the extension, emphasizing voter enfranchisement and urging state legislators to reform election laws for clarity.
Voter Confidence, County-Level Certification, and High-Risk Areas
Simultaneously, public confidence in the Supreme Court’s impartiality is dwindling. With only 20% of voters believing in the Court's neutrality in election matters, concerns are growing that its conservative makeup could skew any intervention toward partisan interests. To safeguard its reputation, the Court is likely to avoid involvement unless absolutely necessary, hoping to maintain public trust by staying out of politically charged disputes. How the Court handles potential election-related cases in 2024 may set a new standard for its approach to federal oversight of state election processes.
On a more localized level, county election certification processes—historically routine steps—are gaining new scrutiny as potential sources of political interference. Certain counties across swing states like Arizona, Georgia, Nevada, and Pennsylvania could pose heightened risks for certification delays. For example, Arizona's Cochise County has already drawn attention for previously delaying certification in 2022, a decision only overturned by court order. In Georgia, counties like Fulton and DeKalb may face similar concerns due to recent state rule changes granting county officials more discretion in certification. Pennsylvania’s Lancaster, Fayette, and Berks counties also bear watching, as these counties have a history of contesting certification over technicalities like missing handwritten dates on mail-in ballots, leading courts to intervene. Officials who opposed certification in past cycles remain in office, heightening the risk of potential delays in the upcoming election.
As litigation already begins to make an impact, the run up to Tuesday continues to be tense. Other highlights from the last week have included Vice President Harris’ closing argument speech in Washington, DC. Over 75,000 spectators gathered at the Ellipse to support the Vice President as she set off to campaign for the rest of the week. This followed former President Trump’s disastrous rally at Madison Square Garden in New York, which skyrocketed the campaign into controversy once again. Both campaigns are now making visits across the west, before making their way back east for Tuesday.
As we head into next week, make sure to keep an eye out for key race alerts from Constitution Partners. Please do not hesitate to reach out with any questions.