The Supreme Court will face a handful of election-related cases on Tuesday, but election experts say the justices are unlikely to change voting rules so close to the election.
The justices currently have four cases before them related to the 2024 election — and more may be on the way — and upsetting the status quo would go against the court’s longstanding practice, experts say.
In two fallenhas Robert F. Kennedy Jr. asked the justices to order that Michigan and Wisconsin remove him from the presidential primaries in those states. Kennedy, who his presidential bid suspended and who endorsed Donald Trump in August, has argued that forcing him to remain on the ballot would violate his constitutional rights and confuse voters.
State officials argued in both cases that voting has already begun on ballots involving Kennedy and that it is impossible to remove him now.
In another case, the Republican National Committee did asked The justices want to freeze a Pennsylvania Supreme Court ruling that would allow voters who made a mistake on their mail-in ballot to cast a provisional ballot in person.
In the fourth, Virginia officials asked the Supreme Court to intervene and allow it to conduct a purge of alleged non-citizens from their voter registration lists after a lower court ruled that it violated federal law during a 90-day “quiet period” before the election.
All four emergency petitions will be fully briefed by the end of the week, giving the justices just days to act before Tuesday’s election.
Derek Muller, a law professor at the University of Notre Dame, said the Supreme Court generally avoids getting into high-stakes cases surrounding the election, but that may not always be possible.
The two RFK cases “will go nowhere,” Muller said — voting has already begun in those states and the justices have rarely heard cases involving access to presidential candidates’ ballots. Muller said that even if the justices think the other two cases raise pressing legal questions, they may not want to get involved.
The question is whether the issue will “make a majority of justices snap and say, ‘we have to intervene,’” Muller said. “I’m not sure, and I’m not sure they’ll want to do it in an emergency.”
Muller said that when the justices look at any of these cases, they consider all their normal factors, including one called the “Purcell principle” and that courts should not interfere with election procedures right before Election Day. Muller said this could mean the justices won’t upset the status quo in Pennsylvania or Virginia before the election.
If the justices intervene in the Pennsylvania dispute, they could lay the groundwork for post-election lawsuits over the state’s outcome, Muller said.
Justice Brett M. Kavanaugh invoked the Purcell principle in May to justify the Supreme Court’s ruling decision to preserve a congressional map of Louisiana despite a lower court ruling that the map violated the Constitution by discriminating against white voters to draw a second black opportunity district in the state.
On a call with reporters Tuesday, Sylvia Albert, the director of voting and elections for Common Cause, said her organization is involved in some of the ongoing litigation surrounding voting across the country and that courts should not disrupt the status quo that is so close an election.
“There is a clear law to protect voters from these types of attacks,” Albert said, referring to the warning against last-minute changes.
She pointed out that many of the court decisions in recent weeks have rejected attempts to change voting rules or explicitly do not apply to the current election. A decision by the U.S. Court of Appeals for the 5th Circuit last week, which found that a state law to count late-arriving ballots in Mississippi violated federal law, did not include an order to change the way the state votes this year counts the ballots.
A federal judge in Pennsylvania spoke on Tuesday rejected a lawsuit by Republican members of Congress to segregate the ballots of Americans living abroad because of what the judge called “phantom fear” of foreign interference.
Judge Christopher C. Conner of the U.S. District Court for the Middle District of Pennsylvania pointed out that the last-minute lawsuit would disrupt the state’s elections.
“An injunction at this late hour would upend the Commonwealth’s carefully crafted election administration procedures, to the detriment of thousands of voters, not to mention the state and county administrators who would be expected to implement these new procedures in addition to their would implement current tasks. Conner wrote.
A panel of judges on the U.S. Court of Appeals for the 4th Circuit ruled Tuesday that federal courts must continue hearing a voter registration dispute in North Carolina.
While these or other cases could end up in the Supreme Court, Muller said the justices are also certainly aware of how their decisions may be perceived by the public.
“On another level, they are also aware of political sensitivities: if you make decisions very shortly before the elections that give the impression that they favor one party or the other, the court wants to give the appearance of impartiality. I think there’s a reason why they’ve been very reluctant to take on a lot of these election cases over the last four years,” Müller said.