Ian Millhiser at Vox takes a look at the history of the Supreme Court and elections in recent years and speculates that the Court will intervene on Trump’s behalf if the case is confined to one state (or more with a similar complaint) but not if there is a variety of cases in various states.
[W]hat would a Supreme Court decision overthrowing the 2024 election look like? Most likely, it would look like a 2020 court dispute out of Pennsylvania.
During the pandemic, the Pennsylvania Supreme Court ruled that certain ballots mailed before Election Day would be counted even if they did not arrive at an election office until up to three days after Election Day. Though the US Supreme Court has the final word on questions of federal law, each state’s highest court has the last word on questions of state law. So the Pennsylvania court’s decision should have been final because it was rooted in that court’s interpretation of Pennsylvania state law.
Nevertheless, the Republican Party asked the Supreme Court to reverse the Pennsylvania court’s decision and order these ballots tossed out, and several Republican justices urged their Court to do so. Ultimately, the Court dismissed the case as moot — Biden won Pennsylvania by a large enough margin that it wouldn’t have mattered what happened to these ballots.
Since then, the Court handed down its decision in Moore v. Harper (2023), a case in which the justices claimed a new power to overrule a state supreme court’s interpretation of the state’s own election law. Though Moore was largely viewed as a victory for voting rights because it rejected a very aggressive attempt to eliminate voter protections enshrined in state constitutions, the Court’s opinion includes an ominous line stating that the US Supreme Court may overrule a state’s highest court’s decision impacting a federal election if the state decision “exceed[s] the bounds of ordinary judicial review.”
The Court did not define this phrase — it just left it dangling out there as a warning that the justices may exercise a new and unprecedented power to swing elections at some point in the future.
In any election, there will be some disputes about which ballots are counted, whether certain polling places should be kept open late, and other routine legal disagreements that are typically resolved by state courts without too much drama. Now, however, a Republican-controlled Supreme Court claims the power to overrule any of these decisions, and potentially to rewrite a state’s own election law.
If the justices decide to overturn the 2024 presidential election, in other words, they have given themselves a powerful new tool that they can use to find reasons to do so.
That sounds just terrific, doesn’t it?
Last nightTrump alluded to a “secret” he and House speaker Mike Johnson share about the election. (“But I won’t tell you until after the election!”) Seeing as how Johnson wrote an amicus brief for one of those cases in 2020, it’s not a stretch that a possible Supreme Coirt intervention might have something to do with their “secret.”
If Millhiser is right we just have to hope that Harris can pull off a decent win in a number of the swing states. Which is outrageous. Not only do Democrats win the popular vote and lose but now we’re facing winning the electoral college as well but having it snatched away by the Supreme Court (again) because it’s not a big enough win. What democracy are we fighting for exactly?
