Election lawyers and experts say it is unlikely the U.S. Supreme Court will take up an election-related case after Nov. 5, let alone cast the deciding vote.
‘It’s got to be super, super close,’ Jason Torchinsky, partner at Holtzman Vogel, told Fox News Digital. ‘If you look at the history of post-election litigation, the only places where it has been successfully outcome-determinative really are in places where the vote is just super close.’
‘If there’s a real issue, the Court will take it. If it’s something that the Court doesn’t think merits a higher-level view, then they’ll summarily affirm,’ Torchinsky said.
Congress amended the Electoral Count Reform Act in 2022 (ECRA) which expedites potential litigation and specifying that the vice president’s role during the joint session is ‘ministerial in nature.’
The statute says ‘any action brought by an aggrieved candidate for President or Vice President’ will be heard by a district court with a three-judge panel. It is then ‘the duty of the court to advance on the docket and to expedite to the greatest possible extent the disposition of the action.’
Parties are then allowed to directly request review of the decision by the U.S. Supreme Court on an expedited basis.
‘It does kind of create a new route into the federal court for a specific limited set of issues being raised under the Electoral Count Act,’ said Greg Teufle, founder of OGC Law. ‘There are very limited issues that can be raised under that Act, though. So it’s not a broad expansion or increase in the likelihood of litigation, either in federal courts or litigation that reaches the U.S. Supreme Court, under the Electoral Reform Act.’
Teufle noted that for an election case to be taken up by the Court, ‘there would have to be significant and provable fraud allegations or other serious violations of the law in the manner that elections are conducted or votes are processed.’
Republicans and Democrats alike have initiated a flurry of election-related lawsuits ahead of Nov. 5, including a recent Georgia case finding that county election officials must certify results by the legal deadline despite suspecting fraud or mistakes.
Joseph Burns, partner at Holtzman Vogel, did note that Republicans may prove successful in election litigation based on the makeup of the Court.
‘In terms of the makeup of the court, there’s no question you’ve got six appointees of Republican judges at this point,’ Burns said. ‘And these are generally people who, I think, are going to interpret what needs to be interpreted, whether it’s a state statute or a federal statute. Their general philosophy is to adhere as closely as possible to the words of the statute.’
‘You have a more conservative-minded Supreme Court in that respect,’ Burns continued. ‘And you certainly have Republicans generally making those types of arguments about courts interpreting statutes or state constitutions, for instance, in a stricter manner. So I think in that respect, given the arguments that each side generally makes, Republicans would be in better shape.’
John Hardin Young, counsel at Sandler Reiff, however, told Fox News Digital he believes it is highly unlikely that the Supreme Court could decide the 2024 election, especially noting the conservative majority.
‘I think that there’s now a sensitivity among the nine justices not to get involved unless it were absolutely necessary,’ Young said. ‘There is, I think, somewhat of a bias in the majority on the Supreme Court to get involved if they believe that process is being corrupted or people who aren’t following the rules because the majority is, I think, very sensitive to democracy depending on people following the rules.’
‘There are just so many unknowns that we have to see how things play out,’ said Jeff Weiss, professor at New York Law School.
Although the ECRA attempted to clarify and revise the casting and counting of electoral votes, Teufle said the law as a whole could become the target of litigation after Nov. 5.
‘The entirety of the act may come under challenge if it’s utilized in a way that impacts the outcome of the election in a way that people view as improper, unfair or unlawful,’ Teufle said. ‘Either side disappointed with how the electoral count goes could raise constitutional questions about the laws used and the process used to count the votes.’
