Supreme Court watchers increasingly worry that the 2024 election between former President Donald Trump and Vice President Kamala Harris might be decided in a courtroom rather than at the ballot box.
This year has already seen an unprecedented level of litigation related to the election and the procedures by which the election will be administrated. Most experts, however, distinguish between cases likely to be resolved before the election and the deluge of cases they are expecting after the election.
The single case closest to being heard by the Supreme Court before the election arises out of Mississippi, according to Leah Tulin, the senior counsel at the Brennan Center’s democracy program. The case concerns the familiar election-year issue of whether to count mail-in ballots that are postmarked before Election Day but are received after Election Day.
Some 18 states have laws providing for the counting of ballots that would fall into this category, sometimes called “postmark” laws. Nevada is likely the most competitive presidential state with such a law this year, though New York and California could potentially decide control of the House and both states count ballots received after Election Day.
In the Mississippi case, the Republican National Committee and the state GOP sued to overturn the COVID-era postmark law, which would disqualify ballots received after Election Day, regardless of how they were dated. The case has drawn attention because it is the first challenge to a postmark law to be accepted by a court on its merits. However, the trial court ruled in favor of Mississippi, prompting Republicans to appeal the case to the Fifth Circuit.
“In general the Fifth Circuit has been on the cutting edge — and not in a good way — in terms of pressing a radical conservative vision of the law in a variety of areas,” Tulin said. “Anytime a case gets to the Fifth Circuit in terms of voting, advocates like us are concerned.”
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A ruling by the court could see the case fast-tracked to the Supreme Court. However, at oral arguments, the attorneys for the Republicans indicated that they wanted the Fifth Circuit to send the case back down to the district court. According to Tulin, this unusual strategy could allow the GOP to use the decision to “sow chaos and doubt and confusion” around mail-in ballots both before and after the election.
“I don’t know if that’s what the strategy is but it at least looks like that could be part of the strategy,” Tulin said. “This is a broader theme we’re seeing in election litigation around the country.”
If Republicans prevail in the case, there would likely be at least tens of thousands of otherwise viable ballots rejected across the country. In 2020, more than 50,000........