“Why the Supreme Court May Not Decide the 2024 Election After All”

I have written this piece for Slate. It begins:

Some have speculated that the Supreme Court has kept its fall schedule light in case it decides to take up litigation that could affect the outcome of the 2024 presidential election. Yet there is reason to believe that the court will stay out of the election in any major way unless we have a close election à la Florida in 2000 or in the unlikely event that elected or election officials seek to subvert the outcome of the vote. The greatest chance for a major Supreme Court intervention fizzled last week, when the Pennsylvania Supreme Court declined to get involved in a dispute over the treatment of certain mail-in ballots. Although this decision may have been a loss for voting rights, it should go without saying that elections are better when they are decided by voters rather than courts….

With the Pennsylvania case out of the way, it’s unlikely that there will be major election-related litigation taken up by the Supreme Court before Nov. 5. As to postelection litigation, there is always the risk of another Bush v. Gore; if the election comes down to a few thousand votes or less in a state that is crucial for an Electoral College victory, then we’ll expect both sides to litigate as hard as they can to try to secure a favorable outcome. Indeed, one could imagine that if it all comes down to Pennsylvania and there is a pile of those timely but undated or misdated ballots, someone will sue on behalf of those voters in federal court, arguing that the ballots must be counted to protect the right to equal protection guaranteed by the 14th Amendment.

Barring a razor-thin victory in which the margin of error in running the election likely exceeds the margin of victory, it’s hard to see what might be litigated over. If Trump narrowly loses, he may continue to yell and scream about noncitizen voting, but he’s not going to be able to prove to a court that it is happening on any scale that could affect an election anywhere. As Trump-appointed Judge Stephanos Bibas wrote in rejecting one of Trump’s 2020 lawsuits out of Pennsylvania: “Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof.”

With bogus claims of fraud out of the way, the remaining risk on the horizon of Supreme Court involvement in the election could come if local or state officials, or Congress, fail to follow the will of the people when it comes to certifying the results. This is an issue that Donald Trump has put on the table by relentlessly questioning the legitimacy of elections. For example, his followers on Georgia’s election board have put new rules in place that could lead to some delay in the certification of the election in that state. And Mike Johnson, who could well remain speaker of the House when it convenes on Jan. 6, 2025, to count the Electoral College votes, has been frighteningly equivocal when asked to commit to a fair vote count….

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