Judge Alito has already set the stage for a Supreme Court election battle – Mother Jones

Judge Samuel Alito sits during a group photo of the justices at the Supreme Court in Washington, DC on April 23, 2021. (Erin Schaff-Pool/Getty Images)

On Friday eveningJust as reporters were signing off, the Supreme Court dropped a clue as to whether it would hear cases that could determine the outcome of a close election in the coming weeks. Specifically, the hint came in a statement from Judge Samuel Alito. Spoiler: he’s open to it.

Alito’s letter came as the Supreme Court declined to hear a case mail-in ballots in Pennsylvania. The Republican National Committee had asked the court to overturn a Pennsylvania Supreme Court decision that allowed voters who forgot to put their ballot in a secrecy envelope to cast a provisional ballot. In refusing to cooperate, the Supreme Court allowed some valid voters in Pennsylvania who made a mistake by returning their ballots to still voting. The RNC did asked the U.S. Supreme Court to stop them.

In response, the justices unanimously refused to disenfranchise these voters, creating the impression of a victory for Democrats and expanded voting rights. Technically this is the case WHERE. But in a signal as to whether the justices plan to interfere in the outcome of the election, the message was muddied by Alito’s statements. to write.

Normally, the justices would not have considered such a case because the Supreme Court is not supposed to review state courts’ interpretations of a state law. But these are not normal times. Last year, the justices decided that questionable state courts were within their jurisdiction if the state law they were interpreting was election-related. In Moore to Harper, the Supreme Court gave itself the authority to intervene in state election law issues if a state court’s decision “exceeded the ordinary bounds of judicial review” to the detriment of the state legislature. It is a vague and untested standard, and this is the first election under this new precedent. The Supreme Court has now become a Sword of Damocles hanging over every state court ruling on election procedures.

In a statement accompanying the court’s order, Alito agreed with the rest of the justices not to hear the case wrote it down to the facts of the case, which he said limited the court’s ability to grant the RNC its requested relief from banning provisional ballots due to forged mail-in ballots. Judges Clarence Thomas and Neil Gorsuch joined Alito’s statement. In the past, problems with the facts have not stopped the court’s conservative wing from taking and deciding whatever case it wanted. There is the website designer who wanted to discriminate against a client who did not exist; the football coach who claimed he prayed alone when photos showed him surrounded by players; and the case against President Joe Biden’s student plans for loan forgiveness on behalf of an entity that wanted nothing to do with the case. The forbearance of Robert’s court is not something to take for granted. So did the show of restraint with the Pennsylvania case a sign that the judges will not be involved in the 2024 elections?

Probably not.

Alito indicated that he and his two colleagues could reopen this particular dispute and others like it in the coming weeks if a new case were presented. He called the Pennsylvania Supreme Court’s decision “controversial” and the issue at hand “a matter of significant importance.” Like legal journalist Chris Geidner notedthis language is “a sure signal from the trio to the RNC, Donald Trump and other potential litigants” and “clearly a setup.” If Trump or his allies want to file a new lawsuit after the election, at least three judges would be willing to hear the case. The question is: would a majority be willing to deny people the right to vote, as this case called for? One framework to look at a possible answer is by comparing the 2000 elections with the 2020 elections.

In 2000, the presidential election in Florida came down to a few thousand votes. It was not clear who would ultimately be the winner if all of Florida’s votes were counted, but by mid-December George W. Bush had a 537-vote lead. The Florida Supreme Court had ordered a statewide recount of certain ballots, so the Bush campaign asked the Supreme Court to intervene. So when the justices halted the recount with a 5-4 decision, they handed the election to Bush Bush vs. Gore. In fact, they elected the president in a situation of turmoil.

In 2020, by contrast, there were many requests for the federal courts, including the Supreme Court, to throw out the ballots and hand the election to President Donald. Trump. The efforts to contest the election came days and even weeks after it was clear that with nearly every swing state declaring Joe Biden the winner, this was not an inconclusive election. It was, barring very significant judicial interference, an insurmountable lead, and in spite of his Trump had lost protests. In such a situation, the Supreme Court’s intervention would have jeopardized the court’s reputation. Why help Trump if it would only have given Biden, who would become president, a very good reason to consider court reform?

If tomorrow’s results look like one Bush vs. Gore scenario, especially if the single swing state of Pennsylvania looks like the new Florida, but the court’s right flank may have a chance to help elect Trump. After all, the court has done that taken several steps to help Trump retake the White House, especially by scuttling his criminal trial for his involvement in the January 6 insurrection. They have also shown a willingness to help the Republican Party in their recent campaign decision to allow Virginia to remove voters from the voter rolls in a manner that violates federal law. Intervention again would be a continuation, not an aberration.

But if tomorrow’s results look more like those of 2020, and Harris is the clear winner in a few days, a majority of justices might find it unwise to stick their necks out for Trump. Trump is well known doesn’t like are associated with ‘losers’. The judges may feel the same way.