What We’ve Learned From Election Lawsuits So Far — And Are Keeping An Eye On Moving Forward

It’s been a busy month for court cases related to the election, with emergency rulings coming down as recently as yesterday afternoon, when a federal judge refused to throw out over 125,000 ballots cast at drive-through sites in Harris County, Texas. (In a late-night order, an appeals court also refused to issue an emergency injunction that would have shut down drive-through voting sites on Election Day.)

But the most closely watched court has been the Supreme Court, and depending on the outcome of the presidential race, it will likely continue to be where attention is most focused. It has taken us a while to get much of an explanation from the justices about the reasoning behind many of their responses to emergency voting-related orders, but by refusing two different times to haltt a Pennsylvania Supreme Court decision that allows election officials to count mail-in ballots that are received up to three days after Election Day, we got some insight into how the justices are thinking about these cases. There’s been some significant disagreement on the court, including among the conservatives, but Chief Justice John Roberts’s perspective is the one that’s been decisive in their orders so far. And essentially, if we look at what Roberts wrote in other cases, he largely thinks that federal courts should not be making changes to election procedures in the lead-up to the vote and instead, should be deferential to state courts and elections boards.

Under that line of reasoning, an extended ballot receipt deadline in Minnesota which was recently thrown into question by a federal appeals court ruling would seem to be safe, since it was the result of a state court consent decree, but the wrinkle is that none of the pre-election cases that made it to the Supreme Court were decided with the input of Justice Amy Coney Barrett, who joined the court just last week. Her approach to these cases — including whether she’d recuse herself — is still unknown, and that leaves a big question mark as we move from the pre-election phase of litigation into the cases that will revolve around procedures on and after Election Day.

Roberts was the decisive vote in most of the controversial cases before the election, so that uncertainty is a big deal if (and this is also a big if!) we end up in a situation where the margin is close enough in a key state for the late-arriving ballots to be potentially decisive. The rest of the Supreme Court’s conservative bloc — with the exception of Barrett, of course — has signaled that they do not agree with Roberts’s approach to state court rulings on election law, and several suggested that they think the Pennsylvania ruling is unconstitutional.