"Severely compromised": Experts warn right-wing SCOTUS justices may "seek to intervene" in election

Supreme Court watchers increasingly worry that the 2024 election between former President Donald Trump and Vice President Kamala Harris might be decided in a courtroom rather than at the ballot box. 

This year has already seen an unprecedented level of litigation related to the election and the procedures by which the election will be administrated. Most experts, however, distinguish between cases likely to be resolved before the election and the deluge of cases they are expecting after the election.

The single case closest to being heard by the Supreme Court before the election arises out of Mississippi, according to Leah Tulin, the senior counsel at the Brennan Center’s democracy program. The case concerns the familiar election-year issue of whether to count mail-in ballots that are postmarked before Election Day but are received after Election Day.

Some 18 states have laws providing for the counting of ballots that would fall into this category, sometimes called “postmark” laws. Nevada is likely the most competitive presidential state with such a law this year, though New York and California could potentially decide control of the House and both states count ballots received after Election Day.

In the Mississippi case, the Republican National Committee and the state GOP sued to overturn the COVID-era postmark law, which would disqualify ballots received after Election Day, regardless of how they were dated. The case has drawn attention because it is the first challenge to a postmark law to be accepted by a court on its merits. However, the trial court ruled in favor of Mississippi, prompting Republicans to appeal the case to the Fifth Circuit.

“In general the Fifth Circuit has been on the cutting edge — and not in a good way — in terms of pressing a radical conservative vision of the law in a variety of areas,” Tulin said. “Anytime a case gets to the Fifth Circuit in terms of voting, advocates like us are concerned.”

A ruling by the court could see the case fast-tracked to the Supreme Court. However, at oral arguments, the attorneys for the Republicans indicated that they wanted the Fifth Circuit to send the case back down to the district court. According to Tulin, this unusual strategy could allow the GOP to use the decision to “sow chaos and doubt and confusion” around mail-in ballots both before and after the election.

“I don’t know if that’s what the strategy is but it at least looks like that could be part of the strategy,” Tulin said. “This is a broader theme we’re seeing in election litigation around the country.” 

If Republicans prevail in the case, there would likely be at least tens of thousands of otherwise viable ballots rejected across the country. In 2020, more than 50,000 ballots that arrived after Election Day were rejected even without making deadlines tighter, according to a Massachusetts Institute of Technology analysis. 

While the Mississippi case is the one most likely to end up before the court ahead of the election, there are other cases percolating that have the potential to end up at the high court, or at least to influence the election. For instance, challenges to new rules written by Georgia’s State Election Board are likely to be ruled on ahead of the election, even if they aren't fully resolved.

In Pennsylvania, there are multiple cases concerning what to do with mail-in ballots that arrive on time but are undated or misdated. In North Carolina, Republicans are suing to disqualify absentee ballots that arrive in envelopes that aren’t properly sealed. In Nevada, Republicans are suing to purge voters from the rolls who registered with the Department of Motor Vehicles when they were not yet citizens. 

In Michigan, three Black voters and the NAACP filed a suit against the Trump campaign alleging that it and the RNC’s attempt to overturn election results in 2020 were disenfranchisement and violated the Voting Rights Act and the Ku Klux Klan Act.

There will also likely be legal issues concerning how states handle voting in the wake of Hurricane Helene, Hurricane Milton and any other storms that disrupt voting procedures ahead of and during the election.

Sophia Lakin, the director of the American Civil Liberties Union's Voting Rights Project, told Salon that though many of the cases in lower courts are not yet poised to appear before the Supreme Court, some cases could be expedited.

“I think there is a possibility that any of these cases that are making their way through the state courts, of which there are quite a few, could find their way before the Supreme Court in the sense that someone could ask, the Supreme Court could weigh in,” Lakin said.

Lakin said that the ACLU is currently focused on two types of cases that could influence people’s ability to vote ahead of the election. The first type of case is efforts to conduct mass purges of the voter rolls, like in Nevada. The second is attempts to delay election certification, like in Georgia.

“It’s a warning shot to would-be election deniers that we’re watching,” Lakin said. “We’re trying to get ahead of it so it doesn’t happen on the backend.”

One issue, according to Lakin, is that the “rules of the game are unfortunately unclear” when it comes to what rules courts will and will not be willing to change ahead of Election Day.

Changes to election rules in the run-up to Election Day theoretically go against the Purcell Principle, a legal precedent that holds that courts should not change election laws in the period immediately ahead of an election in order to not cause issues or confusion about election administration.

“I think what we have been trying to accomplish is at least consistency and that is difficult where you are getting what often feels like inconsistent applications of this so-called Purcell Principle,” Lakin said. “That unexplainable application makes it very difficult to see what the court is looking at.”

Bill Yeomans, a former Justice Department prosecutor and counsel to the former Sen. Edward Kennedy, D-Mass., told Salon that the court has “been quite vigorous in applying that doctrine in racial gerrymandering cases, for example.”

“It will be very interesting to see if they also rely on the Purcell principle in regards to Trump trying to change the rules before the elections,” Yeomans said.

In Yeomans’ analysis, it’s not clear which, if any, election-specific cases make it before the Supreme Court ahead of the election. However, he noted that the Supreme Court has already actively shaped the contours of this year’s election in its rulings on abortion, presidential immunity and in ruling that only Congress can disqualify Trump under the insurrection clause of the 14th Amendment.

Yeomans said that he thinks that the court is “going to be asked to play an incredibly sensitive role in this election” and that “there will be efforts to get the court involved after the election.” He also indicated that he thinks at least two of the Supreme Court’s six conservative justices should recuse themselves from cases related to Trump’s potential re-election.

“I think at this point Justice Thomas and Justice Alito are both severely compromised. Both have refused to recuse from cases where they obviously should have,” Yeomans said. “Let’s not forget Ginny Thomas who was deeply involved in Trump’s post-election shenanigans.”

Ginny Thomas, Justice Clarence Thomas’s wife, was involved in communications with Arizona state lawmakers pressuring them to “ensure that a clean slate of Electors is chosen.” Martha-Ann Alito, Justice Samuel Alito’s wife flew an upside-down American flag, a longstanding symbol of distress, which was adopted by supporters of Trump in the wake of the 2020 election, according to the Washington Post. 

Yeomans indicated that he thinks people are underestimating both the potential post-election litigation and civil unrest in the event of a close election as well as the threat post-election litigation could pose to the Supreme Court as an institution. “I really think this is an existential moment for the court and it’s really put itself in this position," he added.

“I think that people are underestimating how messy this could get. I think that Trump will pull out all the stops to become president again,” Yeomans said. “There will be Roger Stone tactics but there will be things that go well beyond those kinds of things. We’ve seen how Trump can mobilize an armed militia and how he can mobilize a mob.” 

The senior vice president of the Campaign Legal Center, Paul Smith, told Salon, despite the myriad cases in the courts ahead of Election Day, he also suspects that “the really big cases, if they come, will probably come after the election.”

“If we have a very tight election in a determinative state, like in 2000, then all bets are off and there will be litigation all over the place,” Smith said. “If that situation arises it will be every bit as crazy as Bush v. Gore times if not worse.”

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Smith pointed to certification delays and challenges as the most likely type of post-election litigation, though he expressed confidence that lower courts would be able to handle those cases. 

Smith noted that Congress could also potentially attempt to disqualify Trump ahead of certifying the national results under the 14th Amendment. Smith also said that he could see litigation related to more perennial topics of dispute like ballot curing as a spark for a post-election legal blitz. While Smith said he used to think the court would take steps to avoid looking overtly political, he indicated that he’s not so sure in 2024.

“I would’ve said until this past term that people like John Roberts would have wanted to avoid having the Supreme Court looking political,” Smith said. “The case that gives me pause is the immunity case which suggests that they have a strong interest in protecting Mr. Trump from what they perceive as unfair prosecution.” 

The founder of the Supreme Court Integrity Project, Nan Aron, also suggested that some of the conservative justices “might well seek to intervene in an election.”

“The justices are hellbent on cementing their legacies,” Aron said. “It might well be that the president could appoint new justices and hundreds of lower judges.” 

In Aron’s opinion, the main deterrent from the Supreme Court intervening in the 2024 election would be the potential to “cause many to challenge the third branch of government.”

“It used to be that far-right lawyers and academics cared about the court,” Aron said. “It’s not just the Republican party but the nation as a whole is concerned about not just the ideological direction but ethical lapses.”