Don’t Count On The Supreme Court To Hear Any Election Challenges

Walter Olson

Yesterday we saw one of the first glimpses of how the Supreme Court may handle the legal actions filed by President Trump and his allies aimed at overturning the results of the presidential election. A group of Republicans sued Pennsylvania seeking to prevent the state from further steps to make Joe Biden’s win in that state official. (The governor has already certified that win.) After losing at the Pennsylvania Supreme Court, they sought review at the Supreme Court. Quoting reporter Zoe Tillman:

Justice Alito (who handles emergency actions out of the 3rd Circuit) ordered a response [from Pennsylvania] by Dec. 9, per the court — the day after the federal safe harbor deadline for state election results. This is significant.

Were there a serious chance that the suit might reverse the outcome, Alito might have ordered briefing on a more expedited as opposed to leisurely basis. [Update: the Justice has now revised the order to allow faster consideration after all.]

Ilya Shapiro’s election week post in this space predicted many of the legal turns we have seen the past four weeks, including intense Trump challenges in the states in which counting of heavily Democratic mail ballots enabled Biden to overcome a deficit in votes cast on Election Day, as well as the controversy over varying county practice in Pennsylvania on “curing” defective mail ballots.

Looking ahead to the question of what role if any the Supreme Court can be expected to play over the coming weeks, here’s my response.

I think at the present rate the most likely outcome is that the Court will decline to grant review of any Trump challenges, given the flimsiness of the claims, the lack of any obvious error in how the lower courts have handled them, and the overall mootness angle (the relatively meritorious bits would not change any state’s outcome). To be sure, that could change if, for example, a lower court happens to get some important matter egregiously wrong. Four of the nine Justices would need to vote to grant review of a lower court ruling.

This leaves me arguing with people who think the Supreme Court is sure to wade in because the stakes are so high, and because it wants to make its independence clear. I disagree on both points. High stakes alone do not make for a certiorari grant. And by turning down review of rulings that seal a Trump defeat the Court would be speaking just as eloquently, though more quietly, of its independence.