Q: What does that mean for court cases that have reached the Supreme Court already, like the court case you mentioned in Pennsylvania? Is there reason to think the justices’ previous ruling could change? What does that mean more broadly for cases still winding their way through the federal system?
Typically, rulings issued before Election Day do not change afterward. But just yesterday, Justice Alito, joined by Justices Thomas and Gorsuch, penned an opinion openly inviting interested parties to come back to the court after Election Day to prevent Pennsylvania from counting late-arriving ballots, despite the Pennsylvania Supreme Court’s ruling that the state constitution requires those ballots to count, and despite the fact that the U.S. Supreme Court twice denied pre-election motions to block those ballots from being counted. Pennsylvania Secretary of State Kathy Boockvar, for her part, has agreed to segregate those ballots in the event they are disputed after the votes are cast. So the short answer is yes, there is reason to think that the Supreme Court’s ruling with respect to those ballots could change.
Based on the opinions issued over the past week in cases out of Wisconsin, Pennsylvania and North Carolina, there are at least four votes on the high court for one of the claims raised by the Pennsylvania GOP — that the U.S. Constitution prevents state courts from interpreting their state constitutions to constrain state legislatures in a way that changes their federal election procedures. This argument is inconsistent with the Supreme Court’s past pronouncements on the constitutional provision at issue, most recently in 2015. If it takes hold, it would cause chaos in election law, upending countless past decisions and practices across the country. It’s worth noting, too, that Justice Amy Coney Barrett did not take part in any of the pre-election cases, and her vote could well be decisive if the issue comes up again.
On the other hand, it is still pretty unlikely that the Supreme Court will reverse course in a way that changes the vote in Pennsylvania. First, only three justices signed onto the suggestion that the court may rule differently in this case before the count is done. Chief Justice Roberts is unlikely to go along; in a separate opinion in the Wisconsin case, he suggested that he does not think the Constitution limits state supreme courts in this way. In that same case, Justice Kavanaugh stressed the need for “the rules of the road” to “be clear and settled” before the election, suggesting that he too might not support a post-election ruling that tosses out ballots cast by voters who relied on the rules set beforehand. For her part, Justice Barrett may very well recuse herself from considering cases impacting the presidential election, as many have urged her to do after the president tied the nomination to his election litigation prospects.
More broadly, despite all the pre-election activity, the chances that the Supreme Court will rule in a case that determines the presidency is very, very small.
At this point, the vote is unlikely to be close enough for litigation to make the difference. Moreover, Democrats have mobilized their voters to vote early, either in person or by mail, reducing the number of ballots that can be contested later.
The justices have a strong incentive to avoid that scenario. If the Supreme Court helps decide the presidency or control of the Senate by issuing a ruling that’s sharply split on ideological lines, it would dramatically undermine confidence in both the court and the election. It would also strengthen the calls for reforming the court.