The Supreme Court may not decide the 2024 election after all.

Some have speculated that the Supreme Court has kept its fall schedule light in case it decides to take up litigation that could affect the outcome of the 2024 presidential election. Still, there is reason to believe that the court will stay out of the election in some way, unless we have a close election à la Florida in 2000 or the unlikely event that elected or election officials try to overturn the outcome of the election to undermine voting. The biggest chance for major Supreme Court intervention evaporated last week when the Pennsylvania Supreme Court declined to weigh in on a dispute over the handling of certain mail-in ballots. Although this decision may have been a loss for voting rights, it should go without saying that elections are better when they are decided by voters rather than courts.

In the lead-up to the 2020 election, the Supreme Court decided a large number of emergency election cases, but only a few such cases have reached the court so far this election season. The reason is no secret: In 2020, we were in the midst of the COVID pandemic, which sparked litigation as some states changed their election rules, such as expanding mail-in voting options, to keep people safe and healthy, and other states changed their election rules have failed to change their election rules despite the pandemic.

This time there are fewer election changes and fewer serious election disputes in court. Republicans have filed numerous lawsuits, but many of them appear to be either about political posturing (supporting Republican presidential candidate Donald J. Trump's false claims that the system is rife with fraud) or as placeholders for lawsuits these could be brought forward in the event of a close race after the election.

As we saw after the 2020 election, when Trump and his allies filed more than 60 lawsuits seeking to overturn the election results, simply filing a large number of lawsuits is no guarantee of a ticket to the Supreme Court. Most importantly, the justices refused to accept a lawsuit that Texas Attorney General Ken Paxton filed directly with the court in December 2020 seeking to overturn the results of four states with Republican legislatures whose residents voted for Biden instead of voting for Trump.

The case I've been watching most closely this election season came to an abrupt end last week. Pennsylvania law requires that mail-in ballots that arrive on time will not be counted if the voter provides the incorrect date or fails to date the ballot envelope. A lower state court had said in an earlier case that not counting those ballots violated voter protections enshrined in the state constitution. After the state Supreme Court dismissed that case on technical grounds, voting rights advocates filed a new lawsuit directly with the state Supreme Court, asking it to take up the issue and resolve it before the soon-to-be election.

Had the Pennsylvania Supreme Court agreed to take the case, it would have raised a thorny question that was left unanswered by the U.S. Supreme Court's 2023 decision Moore v. Harper: To what extent can state courts rely on state constitutional voting rights protections to trump state law? Given that we expect thousands of misdated and undated but timely mail-in ballots in Pennsylvania this election season, and given Pennsylvania's potentially crucial role in the Electoral College, a decision in this case would have the potential to be outcome-determining.

However, the state Supreme Court on Saturday refused to take up the case, saying the timing of the petition's filing was too close to the election: “This Court will not make any substantive changes to existing laws and procedures during the pendency of an election.” impose or advocate an ongoing election.”

Although this decision means that Pennsylvania voters who mail in their ballots face the risk of disenfranchisement, it also makes litigation from Pennsylvania after the election much less likely, and therefore U.S. Supreme Court involvement, unlikely. (SCOTUS will have an opportunity after the election to address the issue of whether not counting those ballots violates federal law, the Civil Rights Act of 1964, but that will have no bearing on the results The Choice.)

With the Pennsylvania case now resolved, it is unlikely that the Supreme Court will hear any major litigation related to the election before November 5th. In post-election litigation, there is always the risk of further litigation Bush v. Gore; When the election comes down to a few thousand votes or less in a state critical to an Electoral College victory, we expect both sides to fight as hard as possible to achieve a favorable outcome. In fact, if it comes down to Pennsylvania and there is a stack of these timely but undated or misdated ballots, one could imagine someone suing in federal court on behalf of these voters, arguing that the ballots must be counted, to protect the right to equal protection guaranteed by the 14th^Th The change.

Unless there is a razor-thin victory where the margin of error in conducting the election likely exceeds the margin of victory, it is hard to imagine what could be litigated over. If Trump narrowly loses, he may continue to shout about non-citizens voting, but he won't be able to prove in a court that it's happening on a scale that could affect an election anywhere. As Trump-appointed Judge Stephanos Bibas wrote when he rejected one of Trump's Pennsylvania lawsuits in 2020, “Free, fair elections are the lifeblood of our democracy.” The charge of injustice is serious. However, calling an election unfair does not mean that it is unfair. Charges require specific allegations and then evidence.”

With the false allegations of fraud resolved, there could be remaining risk of Supreme Court involvement in the election if local or state officials or Congress do not follow the will of the people in certifying the results. This is an issue that Donald Trump has brought to the table by relentlessly questioning the legitimacy of elections. For example, his supporters on the Georgia Board of Elections have introduced new rules that could lead to some delay in certifying the election in that state. And Mike Johnson, who may well remain speaker of the House of Representatives when it convenes to count the Electoral College votes on January 6, 2025, was startlingly equivocal when asked to commit to a fair vote count.

If election officials try to undermine the election results, Supreme Court intervention to stop them would not only be expected but welcome. In such a case, the intervention of the judiciary would serve to protect the will of the voters, not to circumvent them. We hope we can continue to count on this court to do so much.