The Court Battles That Could Be Important After Election Day
One big question hanging over Election Day isn’t about today’s vote -- it’s about what happens after the polls close and legal battles over absentee, mail-in and late-arriving ballots begin. To be clear, fights over postmarks, signature-matching, and ballot verification happen every election cycle. But this year, there’s a real possibility that some of these conflicts could end up at the Supreme Court, depending on how close the results are in key battleground states.
The most obvious candidate for a Supreme Court battle is the count in Pennsylvania, which has already been the subject of many, many legal battles over how its election is being run. Last week, the U.S. Supreme Court declined for the second time to halt a Pennsylvania Supreme Court ruling that extended the receipt deadline for mail-in ballots by three days. But the fate of those ballots is still very much up in the air, because the Supreme Court didn’t actually rule on the constitutionality of the Pennsylvania Supreme Court’s decision, and Pennsylvania state officials are separating late-arriving ballots in case the courts revisit the issue. In fact, several conservative U.S. Supreme Court justices indicated that they think the state court’s ruling was unconstitutional, and could revisit the case. The fate of those late-arriving ballots could make a difference, too, if the result in Pennsylvania is close.
Similarly, late last week, a federal appeals court ordered state officials in Minnesota to separate late-arriving ballots, while strongly hinting that a state court consent decree that extended the deadline to receive ballots was invalid. What happens to those ballots is now in question, too, pending further action by the courts.
And that’s not to mention the fighting that could go on in other states, like Wisconsin and MIchigan, that couldn’t even begin counting absentee ballots until yesterday or today. Even in states like Pennsylvania, there are other sleeper issues that could turn out to be quite important -- like the disqualification of “naked” ballots that arrive without a secrecy envelope.
So far, in the election law cases it’s heard this year, the Supreme Court has basically adhered to the principle that federal courts are not allowed to order changes too close to an election, and should generally defer to state courts and election boards’ decision-making. That would seem to make the Pennsylvania and Minnesota cases relatively easy to resolve, since they both revolve around decisions made by state courts and officials.
The wild card, though, in any post-election litigation is Justice Amy Coney Barrett, who was confirmed to the Supreme Court too late to participate in any of the pre-election voting litigation. And Chief Justice John Roberts will no longer be the decisive vote once Barrett starts weighing in on cases; he has been the deciding vote in several of the cases we heard before the election.
One thing that is important to underscore: It is very unlikely that the Supreme Court will intervene (or that their actions will matter) unless the result is extremely close in a battleground state. But in that situation, how the justices will rule is pretty unclear.