Election experts anticipate that the U.S. Supreme Court will refrain from deciding any election-related cases after November 5, maintaining the precedent of non-intervention.
Fox News reported that in anticipation of the upcoming presidential election on November 5, numerous lawsuits have already been filed by both Republican and Democratic parties. These pre-emptive legal actions have emerged amidst concerns about potential electoral disputes that might require intervention at the federal level.
Thus far, there's a collective skepticism among legal scholars and practitioners about the Supreme Court's involvement in these cases.
Jason Torchinsky, a legal expert at Holtzman Vogel, explained the scenario under which the Supreme Court might consider intervening. The Court's engagement, according to Torchinsky, is predominantly contingent upon the closeness of the election results.
He mentioned, "It's got to be super, super close," during an interview with Fox News Digital, emphasizing that only exceptionally narrow margins have historically led to outcome-affecting interventions by the Court.
Passed in 2022, the Electoral Count Reform Act (ECRA) was designed to streamline the resolution of presidential election disputes.
It delineates the vice president's role during the electoral count as purely ministerial, removing any discretionary power that could influence the outcome. Additionally, the Act facilitates a more expedited review process through the establishment of a three-judge district court panel specifically for presidential election disputes.
Greg Teufel, founder of OGC Law, noted the ECRA's impact on the legal landscape surrounding elections. "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," he said, indicating a narrowed scope for election-related litigation under the new law.
The current composition of the Supreme Court, which includes six justices appointed by Republican presidents, might seem to favor conservative legal arguments.
However, Joseph Burns, a partner at Holtzman Vogel, suggests that while the justices' conservative tendencies could hypothetically tilt the scales, they also adhere strongly to statutory language, which could limit their inclination to interpret laws expansively.
Burns further elaborated on this point, emphasizing that the strict adherence to legislative words by the conservative justices does not necessarily imply that they would intervene in election matters lightly. Rather, it underscores their commitment to legal precision and constitutional boundaries.
Despite the ECRA's design to provide clarity and speed in judicial review, vulnerabilities exist that could subject it to post-election legal scrutiny.
Greg Teufel expressed concerns regarding the Act's implementation, "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," highlighting potential legal confrontations that might arise if the Act is perceived as being misapplied.
This apprehension is shared by John Hardin Young, counsel at Sandler Reiff, who is skeptical about the Supreme Court's willingness to decide the outcome of the 2024 election.
Citing the justices' general reluctance to dive into election disputes, Young mentioned a heightened awareness and sensitivity amongst the justices to avoid involvement unless essential.
Undoubtedly, the coming weeks will be a critical period for American democracy, watched closely by legal scholars and citizens alike as the judiciary potentially navigates these complex electoral waters.