Justin here.  There’s a tsunami of election litigation cascading through the legal system right now.  It’s producing a lot of public anxiety, in part because it’s designed to produce a lot of public anxiety. 

But none of the current litigation mess is actually seriously destabilizing the 2024 election process.  And absolutely none of it is realistic meaningful fodder for the Supreme Court.

It’s natural to be freaking out.  These elections are incredibly important.  The outcome is likely to be very close.  And the Supreme Court has indulged in some questionable jurisprudence of late, including historic cases involving one of the contenders. (I’m looking at you, Trump v. US).   In a last-minute decision, they’ve even (maybe) deployed a made-up equitable judicial doctrine meant to stop unwarranted last-minute election changes to block implementation of a very real federal law meant to stop unwarranted last-minute election changes.  Sometimes, it’s true, up is down.

So it’s understandable to combine all of these thoughts: to think that the current electoral litigation morass is just prelude for the Supreme Court to go full Godzilla in the aftermath. 

But wishcasting or doomcasting the Supreme Court into a decisive role in the 2024 election is at this point just indulgent dystopian fiction.  That’s not how any of this actually works.

There are three types of election lawsuits out there right now.  First, an increasingly vanishing handful of cases in a few states over limited election procedures might still yield a result in the next few days.  But as Derek has highlighted, these cases hold relatively few ballots in the balance.  As important as they are to the individual voters involved, they’re not going to change a result before the election.  And that means they’re not going to change a result after the election either.

Second, there are a handful of cases with real arguments over significant issues that have yielded an answer effectively locked in for this election.  But they’re now out of time.  The fighting will continue — some will eventually be upheld, some overturned — but without further impact on the 2024 cycle.

The third category is by far the largest: the slew of cases that. Were. Never. Going. To. Win.

Ever. 

They’re press releases and fundraising emails and vigilante manifestos, with a fancy cover page and a few footnotes, usually brought by the wrong person at the wrong time seeking relief that isn’t available.  Reformat them in Comic Sans and you’ll see them for what they are.  A lawsuit without provable facts showing a violation of actual laws is just a Tweet with a filing fee.  You can tart up numbered paragraphs with all the legalese you want, and it’s still not going to 1) magic you up a unicorn or 2) disappear 200,000 legitimate votes.

It’s alarming to think that even one Justice might want even one of any of these cases.  But it takes five Justices to act.  And there aren’t five Justices who would find any of this remotely tempting.

Take, for example, the Pennsylvania Supreme Court’s decision last week about a voter who submits an (invalid) mail ballot without a “secrecy envelope,” and then votes a (valid) provisional ballot.  The RNC asked the Supreme Court to step in, under the mysterious “independent state legislature” theory.  Could this be the one?

Nope.

The same Justices currently sitting on the Supreme Court effectively killed this notion just 16 months ago.  The pitch then was that the federal Constitution gives state legislatures a special exemption from normal state law (but only for federal elections).  And the Court firmly rejected it, 6-3.  True, the Court said that in addressing a state’s election structure, “state courts may not transgress the ordinary bounds of judicial review.”  But in Pennsylvania, the state courts just interpreted a state statute, using its normal tools of statutory interpretation.  That’s as ordinary as it gets.  The 2023 case was far tastier bait than this, and only three Justices were biting.

And yes, those three Justices noted the argument again yesterday, even as they agreed with the majority in a unanimous statement to send this case where it belonged.  6-3 is still 6-3 is still 6-3.  There’s no reason to think anyone on the Court has changed their minds.

Or, if you prefer, take the Fifth Circuit’s decision last week that Mississippi mail ballots have to be received by election day in order to count.  Is that just a setup for the Supreme Court to step in after the election?

Nope.

The decision is a little nuts.  But even this reactionary appellate panel balked at applying its own logic in the middle of an election with ballots already being cast.  It handed down a decision on what the law means, but deferred a remedy.  This is the Circuit repeatedly chastised of late for decisions too outlandish even for an exceedingly conservative Supreme Court.  Five Justices aren’t going to leapfrog them on the road to Crazytown.

I mean, Cap probably said it best.

There’s a notion that these cases are galaxy-brain traps, “zombie lawsuits” waiting to ravage the post-election landscape.  But there’s a pretty big missing step between here and there: a plausible legal argument sufficient to grant election-swinging relief.  Just as in 2020, courts this cycle in election cases have not simply been indulging what some might presume to be partisan priors: if you look only at the ostensible partisan composition of the bench, you’d get the outcome wrong much of the time.  Instead, courts have largely been acting like … courts, discarding most nonsense as it comes.  There’s more than enough horror going around already this Halloween — we don’t need to indulge the litigious supernatural. 

Speaking of seasonal Gore, I’ll concede that all bets are off if the election comes down to 537 ballots.  At that margin, anything and everything matters: a butterfly ballot flaps its wings in one part of a state and the winds change in another.  But with a margin even slightly bigger than that — a very close election, or even a very very close election — this election isn’t coming down to the lawyers, or the courts, nor even the Supreme Court.  It will, once again, be up to the voters.