By Josh Gerstein
When the Supreme Court convenes Monday to open its new term, there will be 29 days until Election Day and one question on everybody’s mind: Will the justices once again find themselves in the middle of the presidential race?
Before the election, the high court could be called to resolve emergency disputes over ballot-access measures or vote-counting rules. After the election, any challenge to the outcome would likely end up with the justices.
Either scenario would transform a term that so far looks sleepy into another politically explosive chapter for the court, which is controlled by a 6-3 conservative majority. And it would come at a time when public trust in the court is still on the decline.
The cases on tap do include some politically sensitive disputes, like a fight over a Tennessee law banning hormone treatments for transgender minors. There’s also an argument set for Tuesday on the Biden administration’s effort to ban so-called “ghost guns,” which are assembled from kits purchased over the internet and are often untraceable. Another case tests a new Texas law that requires visitors to porn websites to provide identification proving they’re over 18.
But many election-related imbroglios wait in the wings. So many, in fact, that some experts believe the justices are deliberately keeping their docket slim and light on marquee cases.
“They had to make space for the possibility that there would be election cases that they would have to address,” said Georgetown University law professor Irv Gornstein, who spent more than a decade arguing cases for the federal government at the Supreme Court. “Even if it turns out there are none, I think that they have to have that on their mind.”
Of course, the justices have already delivered two rulings with huge consequences for this year’s presidential contest. In March, the court barred states from knocking former President Donald Trump off the ballot on the grounds that he led an insurrection following his 2020 loss. And in July, the court largely backed Trump’s argument that, by virtue of his service as president, he enjoys immunity from criminal prosecution for many of his actions during that time. (More recently, the court has also issued emergency orders declining to grant ballot access for third-party candidates Robert F. Kennedy Jr. and Jill Stein.)
Here are eight ways the Supreme Court could get pulled back into the election.
Pennsylvania’s mail-in ballots
Since before the last presidential election, civil rights groups, election boards and the Pennsylvania Republican Party have been duking it out in court over what should happen to mail-in ballots that voters misdate or fail to date. The issue remains contentious, with a sharply divided Pennsylvania Supreme Court ruling in 2022 that such ballots should not be counted, but several other courts holding that a missing or erroneous date isn’t significant enough to warrant casting aside a ballot.
In recent weeks, the state Supreme Court has twice turned down cases raising the same question, but civil rights advocates who want such ballots counted still want action. State officials have warned the state’s highest court that it would be better to address the issue before the election rather than after.
The Pennsylvania Supreme Court did agree Saturday to hear on an expedited basis a dispute about varying policies on voters’ opportunities to “cure” problems that could disqualify their mail-in ballots, like failing to use an inner security envelope used to keep cast ballots anonymous.
Another legal fight over Pennsylvania’s mail-in ballots is also underway in federal court, where five Republican members of Congress sued last week to argue that the state’s policy of not requiring Social Security or drivers’ license numbers from overseas and military voters violates state and federal law. A hearing on the lawmakers’ request to reverse the state’s policy and impose ID verification is set for next week.
Election law experts say the legal issues involving the mailed ballots could be critical because the Keystone State is one place where the in-person vote is likely to favor Trump, while other ballots are likely to lean toward Kamala Harris. Add to that the fact that the potentially pivotal state won’t allow any ballots to be counted before the polls open and you have a recipe for intense scrutiny of the mail-in votes and for legal challenges that might be considered arcane elsewhere.
Appeals to the U.S. Supreme Court on these issues in the coming weeks are possible, but could be stymied by the justices’ usual reluctance to upend balloting rules just before an election.
In 2020, Justice Samuel Alito stepped into a related dispute at the GOP’s request, ordering that late-arriving mail-in ballots be segregated from other votes. The full court later balked at delving into the issue after the election results showed Joe Biden winning Pennsylvania by more than 80,000 votes — a far larger margin than the roughly 10,000 ballots that came in late. Justice Clarence Thomas said the justices should have taken up the matter anyway just to settle it, but his colleagues disagreed.
Hurricane Helene disrupts voting in North Carolina
The devastating hurricane that swept through the southeast late last month has claimed more than 220 lives, driven thousands of people from their homes, cut off roads and electricity and disrupted mail service. Flooding from the storm is scrambling plans for the election, particularly in the swing state of North Carolina, with some polling places expected to be inaccessible, some county election offices closed, voters’ identification documents lost and some absentee ballots already delivered into the storm-battered region.
The state board of election already extended some deadlines for local election boards and is considering additional actions, such as extending ballot receipt deadlines. Any such actions could draw litigation accusing the board of usurping the state legislature’s authority, and any refusal to accommodate storm-affected voters could lead to lawsuits asking judges to grant such flexibility.
One potential flashpoint: the Tarheel State’s complex laws about voters who move shortly before the election. Any of these storm-related legal fights could bring back to the Supreme Court long-simmering questions about the emergency powers of state election officials and state judges.
Georgia’s activist election board
Much of Georgia’s Republican establishment — notably the governor and secretary of state — has rejected Trump’s false claims that he won that state in 2020. But a Trump-friendly faction that embraces the debunked idea of widespread voter fraud is now in control of the state’s election board.
Last month, the board voted to mandate a hand count of ballots cast on Election Day. The panel took the step over the objections of local election officials who said it was likely to produce disruption and confusion. The state’s attorney general also opposes the plan, saying it’s among a series of measures that “very likely” exceed the board’s power under state law.
The GOP board members said they were trying to increase public confidence and ward off fraud, but Democrats denounced the new policy as aimed at giving Trump the chance to seize on purported irregularities to cast doubt on the election results in Georgia, another state that is potentially critical to the presidential race.
The Democratic National Committee and others have sued in state court over the election board’s moves, but legal experts say the issue could wind up at the Supreme Court either before or after the election.
Ballots arriving after Election Day
Another pending legal fight focuses on a particular Trump obsession: the notion that all votes should be tabulated on Election Day, producing an almost immediate result.
“We want all votes counted by election night,” Trump said as he kicked off his 2024 presidential campaign nearly two years ago.
In many places, the sheer volume of votes makes that impossible. And in some states, the law specifically permits mail-in ballots postmarked by Election Day to be counted even if they arrive as long as two weeks after the election.
The Republican National Committee filed a federal lawsuit in Mississippi in February seeking a ruling that the Constitution and federal law require that ballots be in the hands of voting officials by Election Day. A district court judge dismissed the case, but the RNC’s appeal went last month before a very conservative appeals court panel, which has yet to rule.
Mississippi is expected to vote overwhelmingly for Trump, but a decision upholding the GOP’s theory on late-received ballots could prompt challenges in other states and might lead Democrats to take quick action at the Supreme Court.
Sleeper case in Arizona’s election manual
Groups with close ties to Trump won a little-noticed ruling last month blocking Arizona’s secretary of state from implementing a policy that would allow him to ignore all votes from a county whose local board fails to certify the canvass of votes within 16 days of the election. The policy seems aimed at discouraging local officials from withholding a certification over fraud claims.
“The Canvass Provision is utterly without precedent,” U.S. District Judge Michal Liburdi, a Trump appointee, wrote as he issued a preliminary injunction against the policy. “The magnitude of harm the Canvass Provision stands to pose, if triggered, is severe.”
Arizona could appeal to the 9th Circuit to try to preserve the policy, setting up a possible high court fight on the issue. A spokesperson for Arizona Attorney General Kris Mayes declined to comment on whether the state plans to appeal.
Bush v. Gore redux
The election will likely come down to seven swing states where polls show Trump and Harris neck-and-neck. A razor-close result in any of those places could put the justices in the hot seat, much as they were 24 years ago when they ended the recount process in Florida and effectively declared George W. Bush the president-elect.
“If the election is very close — like Bush versus Gore close — so that the margin of victory is smaller than the potential margin of error … then of course, you’re gonna have a ton of lawsuits, and those are going to end up eventually at the Supreme Court,” UCLA law professor Richard Hasen said. “That’s when you put the election under the microscope and everybody sees things in there through their partisan worldview.”
An untested federal election law
While the events of Jan. 6, 2021, mostly evoke images of bitter division, the effort to derail the counting of electoral votes that day did have one bipartisan outcome: a broad agreement to clarify the rules for the session Congress holds every four years to certify the results of the presidential election. The Electoral Count Reform Act, passed in 2022, was widely hailed by election law experts, but there’s no getting around the fact that the coming presidential election will be the first where the new framework will be put to the test.
“It’s really supposed to clamp down and make it impossible for anybody to go rogue,” Ohio State University law professor Ned Foley said. “No rogue governors, no rogue state legislatures. Whatever the law is on the appointment of electors, that’s the rules by which this game is played this year.”
“And if there’s any challenges about that,” Foley added, “it goes to court.”
The law, known as ECRA, directs disputes about the victor in a particular state to panels of three federal judges and offers the potential to seek Supreme Court review of the panel’s decision. The law aims to prevent a repeat of what happened in 2021, when Trump repeatedly but unsuccessfully pressured Vice President Mike Pence to refuse or delay accepting certifications from particular states. But because the law is new, questions about its constitutionality have yet to be directly addressed by the courts.
“There could be arguments that, to my mind at least, are not completely frivolous that Congress does not, in fact, have authority over presidential elections,” said Daniel Tokaji, dean of the University of Wisconsin law school. “I don’t think they’re right, but I don’t think those arguments are crazy, either.”
Another Jan. 6 fiasco
When the Supreme Court ruled earlier this year that states lack the power to unilaterally bar candidates for federal office — like Trump — from the ballot under the Constitution’s provision making insurrectionists ineligible to hold office, most of the justices in the court’s conservative majority seemed to want to nail that door firmly shut.
However, the ruling they issued left some ambiguity around Congress’ role. The court made clear Congress could pass a law to disqualify insurrectionists from future elections but was silent about another way lawmakers could, in theory, try to enforce that provision: effectively refusing to accept a Trump victory by not tallying electoral votes for him next January.
At the moment, the scenario seems quite remote. It would likely depend not only on Democratic control of both chambers, but on nearly all Democrats agreeing to such a plan. It’s hard to find a single Democratic lawmaker who says he or she would entertain it, although Rep. Jamie Raskin (D-Md.) grimly mulled such a scenario earlier this year, shortly before the high court ruling came down.
“They want to kick it to Congress, so it’s going to be up to us on January 6, 2025, to tell the rampaging Trump mobs that he’s disqualified,” Raskin said in February, although he warned that could lead to something “akin to civil war.”
Trump would almost certainly sue before or after such a move by Democrats, putting the justices back in a position most of them don’t seem to covet.
“I don’t feel like this court is particularly anxious to resolve another presidential election, which isn’t to say there might not be one or two or three justices who would be,” said Tokaji. “You just never know.”