Election-related cases land at Supreme Court, maybe a bit late

WASHINGTON — The Supreme Court faces a handful of election-related cases ahead of Election Day on Tuesday, but election experts said the justices are unlikely to upend voting rules so close to an election.

The justices on Tuesday dispensed with two of the four cases tied to the 2024 election in front of them — with possibly more cases on the way — and upsetting the status quo would go against years of practice by the court, experts said.

The court, without explaining its reasoning, rejected efforts in two cases brought by Robert F. Kennedy Jr. to remove him from the presidential ballots in Michigan and Wisconsin. Kennedy, who suspended his presidential bid and endorsed Donald Trump in August, has argued that forcing him to remain on the ballot violates his constitutional rights and would confuse voters.

State officials in both cases argued that voting has already begun with ballots that include Kennedy and removing him now is impossible.

In another case, the Republican National Committee has asked the justices to freeze a Pennsylvania state supreme court ruling that would allow voters who made a mistake on their mail-in ballot to cast a provisional ballot in person.

In the fourth, Virginia officials asked the Supreme Court to intervene and allow it to conduct a purge of alleged noncitizens from their voter registration rolls after a lower court found it violated federal law on a 90-day “quiet period” before the election.

The remaining emergency petitions are set to be fully briefed by the end of the week, leaving just days for the justices to act before Tuesday’s elections.

Derek Muller, a law professor at the University of Notre Dame, said the Supreme Court generally avoids stepping into high-stakes litigation surrounding the elections, but that may not always be possible.

The two RFK cases “won’t go anywhere” Muller had said, since voting has already started in those states and the justices have rarely taken cases involving presidential candidates’ ballot access. Muller said that even if the justices think the other two cases present pressing legal questions, they may not want to get involved anyway.

The question is whether the issue will “make a majority of the justices bite and say, ‘We need to intervene,’” Muller said. “I’m not sure, and I’m not sure they’re going to want to do it on an emergency basis.”

Muller said that when the justices look at one of those cases they consider all of their normal factors, including one called the “Purcell principle” that courts should not interfere with election procedures just before Election Day. Muller said that may lead the justices to not upset the status quo in Pennsylvania or Virginia ahead of the election.

If the justices stepped into the Pennsylvania dispute, they may lay the groundwork for post-election litigation about the state’s result, Muller said.

Justice Brett M. Kavanaugh invoked the Purcell principle in May to justify the Supreme Court’s decision to keep in place a Louisiana congressional map, despite a lower-court ruling that the map violated the Constitution by discriminating against white voters to draw a second Black opportunity district in the state.

During a call with reporters Tuesday, Sylvia Albert, the director of voting and elections for Common Cause, said that her organization is involved in some of the ongoing lawsuits around voting across the nation and that courts should not upset the status quo so close to an election.

“There is clear law to protect voters from these kinds of attacks,” Albert said, referring to the admonition against last-minute changes.

She pointed out that many of the decisions by courts in the last few weeks have either rejected efforts to change voting rules or explicitly did not apply to the current election. A decision by the U.S. Court of Appeals for the 5th Circuit last week, which held that a state law to count late-arriving ballots in Mississippi violated federal law, did not include an order to alter how the state counts ballots this year.

On Tuesday, a federal judge in Pennsylvania dismissed a lawsuit from Republican members of Congress to segregate ballots from Americans living abroad over what the judge called “phantom fears” of foreign interference.

Judge Christopher C. Conner for the U.S. District Court for the Middle District of Pennsylvania pointed out that the last-minute suit would upend the state’s elections.

“An injunction at this late hour would upend the Commonwealth’s carefully laid election administration procedures to the detriment of untold thousands of voters, to say nothing of the state and county administrators who would be expected to implement these new procedures on top of their current duties,” Conner wrote.

A panel of judges for the U.S. Court of Appeals for the 4th Circuit on Tuesday held that federal courts should continue to hear a dispute over voter registration in North Carolina.

Although those or other cases could arrive at the Supreme Court, Muller said the justices are also certainly aware of how their decisions may be perceived by the public.

“At another level, they’re also aware of the political sensitivities that if you were issuing decisions very close in time to an election that look like they’re favoring one party or another, the court wants to have an appearance of impartiality. I think there’s a reason why they’ve been very reluctant to take a lot of these election cases in the last four years,” Muller said.