Twenty years ago this fall, a hotly contested presidential election led to 36 days of legal turmoil that culminated with the Supreme Court’s ruling in Bush v. Gore. This year, as America prepares to vote during the coronavirus pandemic, the Supreme Court once again may shape the outcome of a presidential election.
It could do so in a couple of ways. The expected surge in voting by mail increases the chance that the result will be inconclusive on election night, because many ballots may remain untallied. That would set the stage for targeted post-election litigation over ballot-counting procedures – essentially a reprise of Bush v. Gore. But even ignoring the potential for post-election litigation, the lower courts are grappling right now with hundreds of pre-election lawsuits, many of them seeking or challenging modifications to voting procedures in light of the pandemic. A few of these lawsuits already have reached the Supreme Court on an emergency basis, and more are likely to do so in the coming weeks. The justices’ rulings in these cases could determine how – or whether – millions of Americans vote this fall.
That is why SCOTUSblog is collaborating with experts from Election Law at Ohio State to provide up-to-date information on significant election-related cases as they progress through the court system. Our 2020 Election Litigation Tracker, which we launch today, contains plain-English case summaries, primary documents and links to news coverage at SCOTUSblog and elsewhere. It also includes expert-written explainers on some of the arcane aspects of election law – like the Purcell principle and the Anderson-Burdick doctrine – that could become part of America’s vocabulary this fall, just as “hanging chads” did in 2000.
This is an unusual project for SCOTUSblog. We don’t normally cover litigation before it reaches the Supreme Court. But in the election law context, cases typically reach the justices in an emergency posture and must be litigated at high speed. That means these momentous cases often do not get the benefit of oral argument, full briefing and lengthy deliberation by the justices. And because of how quickly the cases arise, the legal community, the press and the public often lack access to reliable, nonpartisan information about how the cases got to the justices and what issues are at stake. That’s the problem our 2020 Election Litigation Tracker aims to solve. It is not a comprehensive database of all election-related lawsuits. Rather, it is a resource on the cases that are most likely to land on the desks of the justices shortly before – or shortly after – Election Day. When they do, they should not come as a surprise.
We thank the team at Election Law at Ohio State – especially Edward Foley, Steven Huefner, Matt Cooper and Gillian Thomson – for their invaluable collaboration. And we want to hear from readers. We’ll be continuously adding new content to the tracker, so if there’s something you’d like to see, or a case you think we should be covering, just email us. SCOTUSblog can be reached at firstname.lastname@example.org, and the Ohio State team can be reached at email@example.com.