As Election Day voting begins, the race between Vice President Kamala Harris and former President Donald J. Trump appears to be a close race, with the election dragging on and the U.S. Supreme Court not deciding the outcome. Some people are concerned about this.
Several election-related disputes have already reached the Supreme Court. Courts last week allowed Virginia to remove 1,600 people from its voter rolls and refused to remove Robert F. Kennedy Jr. from ballots in two battleground states where mail-in ballots were deemed invalid. The court ruled that Pennsylvania voters were allowed to vote. Cast your provisional ballot in person.
With the presidential election so close, questions remain as to whether the court, which has a 6-3 conservative majority, will take up a case to determine the next president in the coming days or weeks.
Election experts say the Supreme Court is unlikely to ultimately play a major role in the outcome, but it is possible. Here's what you need to know:
What role can the Supreme Court play?
The Supreme Court generally tries to stay out of politics and election disputes, leaving most election-related cases to remain in lower courts. But if the case goes to court, the Supreme Court may choose to take it up.
To do so, the court must determine that it has jurisdiction over the issue and that the candidate has a legitimate legal challenge, such as how certain types of ballots should be treated. .
This is a high hurdle to overcome.
“If there is no really good theory of why there were serious flaws in the way the election was run, I really don't see a path to litigation from the underdog to the winner.''Richard L. Kennedy he said. Hasen is an election law expert at the University of California, Los Angeles School of Law.
What are the most important factors?
Election experts say the final outcome could change if the Supreme Court takes up cases in states with very close vote margins.
“The closer we get, the more post-election litigation we can expect to see,” said Richard H. Pildes, an election law expert at New York University School of Law.
The vote margin between Harris and Trump would have to be very narrow. As we saw in Georgia and Arizona in 2020, even a difference of about 10,000 votes is likely not enough for the Supreme Court's decision to affect the final outcome.
And in the event of a close vote, the state must have enough electors to make a difference in the final tally.
Election experts will pay particular attention to Pennsylvania, which has 19 electors and is “always a fertile ground for election litigation,” according to Pildes.
What precedent does the Supreme Court have for deciding elections?
Although the Supreme Court regularly considers election-related cases, it has historically chosen not to get involved in vote counting.
The major exception was in 2000, when the Supreme Court heard a dispute in Florida between then-Texas governor candidate George W. Bush and Vice President Al Gore. On December 12, 2000, in a 5-4 vote, the Supreme Court overruled the Florida Supreme Court and halted the recount of votes, allowing Mr. Bush to win the state and ultimately the presidency. .
In the end, Mr. Bush won Florida by just 537 votes.
“If the election ends in a close election like we saw in 2000, the role of the Supreme Court could be compromised,'' said Hasen, a professor at the University of California, Los Angeles. It will exceed the margin of victory for any candidate. ”
Will this election be that close?
It's impossible to predict, but polls show the presidential election is one of the closest in American political history.
Professor Hasen cautioned that close votes do not necessarily lead to close results, and that battleground states may not be close enough for Supreme Court cases to affect the final outcome.
What are the other possibilities?
It's also possible that the Supreme Court will take up a case after the election that won't affect the presidential winner but could affect congressional elections, which determine which party controls the Senate and House of Representatives.
The Supreme Court could also take on a case in 2024 that might not change the game, but could have a lasting impact on future federal elections.
