Election cases reach the Supreme Court, perhaps a little too late

The Supreme Court will take up several election-related cases ahead of Tuesday’s Election Day, but election experts say the justices are unlikely to change voting rules so close to the election.

Justices on Tuesday dismissed two of the four 2024 election cases before them – with more cases likely pending – and disrupting the status quo would be contrary to the court’s longstanding practice, experts said.

The court, without explaining its arguments, rejected the efforts regarding two matters contributed by Robert F. Kennedy Jr. to remove it from the presidential ballots in Michigan and Wisconsin. Kennedy who he suspended his candidacy for the office of president and endorsed Donald Trump in August, argued that forcing him to remain on the ballot violates his constitutional rights and confuses voters.

State officials in both cases argued that voting had already started with Kennedy and it was impossible to remove him now.

In another case, it was done by the Republican National Committee he asked justices have frozen a Pennsylvania Supreme Court ruling that would have allowed voters who made an error on their absentee ballot to cast a provisional ballot in person.

In the fourth, officials from Virginia he asked Supreme Court to intervene and allow him to remove alleged foreign nationals from voter rolls after a lower court found he violated federal law during the 90-day “quiet period” before the election.

The remaining emergency petitions are scheduled to be fully argued by the end of the week, leaving judges just a few days to act before Tuesday’s election.

Derek Muller, a law professor at the University of Notre Dame, said the Supreme Court generally avoids getting into high-stakes election-related litigation, but that’s not always possible.

The two RFK cases “will go nowhere,” Muller said, because voting has already begun in those states and justices have rarely taken up cases involving presidential candidates’ access to the ballot. Muller said that even if the justices believe the other two cases raise pressing legal issues, they may not want to get involved anyway.

The question is whether the issue “will cause most judges to bite the bullet and say, ‘We have to intervene,'” Muller said. “I’m not sure and I’m not sure they’re going to want to do it urgently.”

Muller said that when judges hear one of these cases, they take into account all the usual factors, including one called the “Purcell rule,” which states that courts should not interfere with election procedures just before Election Day. Muller said that could encourage judges not to disturb the status quo in Pennsylvania and Virginia ahead of the elections.

Muller said if justices step into the Pennsylvania dispute, they could lay the groundwork for post-election litigation over the state’s outcome.

Justice Brett M. Kavanaugh invoked the Purcell Rule in May to justify the Supreme Court’s ruling decision maintaining Louisiana’s congressional map despite a lower court’s ruling that the map violated the Constitution by discriminating against white voters in order to draw a second district of opportunity for blacks in the state.

During a Tuesday call with reporters, Sylvia Albert, Common Cause’s director of voting and elections, said her organization is involved in some ongoing voting lawsuits across the country and that courts should not disrupt the status quo so close to the election .

“There is clear law to protect voters from these types of attacks,” Albert said, referring to a warning against last-minute changes.

She emphasized that many court decisions in recent weeks either rejected attempts to change voting rules or did not directly apply to the current elections. Last week’s decision by the U.S. Court of Appeals for the 5th Circuit, which found that a state law to count late-arriving ballots in Mississippi violated federal law, did not include an order to change how the state counts ballots this year.

A federal judge in Pennsylvania on Tuesday released a lawsuit filed by Republican members of Congress seeking to segregate ballots from Americans living abroad over what a judge called “phantom fears” of foreign interference.

Judge Christopher C. Conner of the United States District Court for the Middle District of Pennsylvania noted that the last-minute lawsuit would overturn the state’s election.

“An order issued at this late hour would upend the Commonwealth’s carefully crafted election administration procedures to the detriment of countless thousands of voters, not to mention state and county administrators who will be expected to implement these new procedures in addition to their existing duties,” Conner wrote .

On Tuesday, a panel of judges on the U.S. Court of Appeals for the 4th Circuit ruled that federal courts should continue to hear the voter registration dispute in North Carolina.

While these or other cases may end up before the Supreme Court, Muller said the justices are certainly also aware of how their decisions may be perceived by the public.

“On another level, they are also aware of the sensitive political issue that when decisions are made very close to an election that appear to favor one party or another, the court wants to appear impartial. “I think there is a reason why they have been very reluctant to take on a lot of election-related issues over the last four years,” Muller said.