Washington The Supreme Court will enter a new year Friday but there’s still election drama from 2020 on its plate.
The Trump campaign this week twice asked the court to overturn President-elect Joe Biden’s win in Wisconsin. And cases from the President and allies looking to throw out Biden’s victories in Pennsylvania, Georgia, Michigan, Wisconsin and Arizona are pending on the court’s docket.
Justices have shown no interest in changing the outcome of the election but even if they don’t act now, there are still some legal issues that may ensure we hear about the 2020 campaign in the months to come.
Here’s what to know:
Didn’t the Supreme Court just rule on election challenges?
Yes. The court rejected a lawsuit from Texas against four states — Pennsylvania, Georgia, Michigan and Wisconsin — seeking to overturn Biden’s victories there. The court said Texas lacked the standing to sue.
And the Electoral College already voted?
On December 14, the Electoral College affirmed Biden’s victory of 306 to 232 electoral votes.
So what’s going on here?
Trump and his allies continue to ask for the same results from the courts — to toss out the electoral votes Biden received. The lawsuits cite a series of repetitive and unproven claims of voter fraud, election mismanagement and the legal concept that only the state legislature has power, through the US Constitution, to dictate how presidential elections are held in each state.
Those and similar claims have been rejected dozens and dozens of times by state and federal courts in Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin.
The result, Trump hopes, is to either have GOP-controlled legislatures give those electoral votes to the President, or prevent Biden from reaching the magic 270 number, throwing the election to the House of Representatives where Trump would win. Ongoing legal challenges also help muddy the waters ahead of Congress certifying Biden’s victory next week.
Pennsylvania Attorney General Josh Shapiro replied to the challenge against the Keystone State and minced no words.
“Pennsylvania voters have made their choice for President, and that choice was ratified by the only Electoral College that actually exists,” Shapiro, a Democrat, said in a filing Wednesday objecting to Trump’s lawsuit there.
“With each ensuing attempt, the applicants have become more desperate and more disconnected from the law and reality,” Shapiro said, before quoting the late Justice Antonin Scalia, who once observed that “insanity, it has been said, is doing the same thing over and over again but expecting different results.”
Some lawsuits are on the court’s docket. What does that mean?
Only that they’ve been filed correctly and have been assigned a docket number. The justices do not vote on whether to accept cases to the docket; it’s simply administrative.
Does being on the docket compel the justices to act?
No. Justices can let cases sit there as long as they want. That includes waiting past January 6, when Congress counts the Electoral College results, or January 20 — Inauguration Day — if they choose. That would make the cases moot.
But some justices have been interested in legal issues beyond the 2020 election. Does that apply here?
Yes, and that may be why 2020 may continue into 2021.
Just as when Texas sued Pennsylvania and three other swing states, there are other issues at play besides Trump’s attempt to overturn Biden’s victory.
With Texas earlier this month, Justices Samuel Alito and Clarence Thomas indicated they wanted to further consider the lawsuit because they have an expansive view of original jurisdiction, leaning toward the idea that the court is obligated to look at state-versus-state disputes like the one Texas filed. In their statement — not a dissent — accompanying the ruling, they were very clear, however, to say they weren’t discussing the fraud claims Texas raised.
Now, lawsuits involving state supreme court rulings — one in Wisconsin and one in Pennsylvania — may interest justices who think SCOTUS could take a more expansive approach to hearing appeals from state supreme courts, a notion expressed by Justice Brett Kavanaugh in a late October footnote.
What Kavanaugh wrote in his footnote
“Under the U.S. Constitution, the state courts do not have a blank check to rewrite state election laws for federal elections,” Kavanaugh wrote in a footnote of a concurring opinion when the court rejected a Democratic plea to allow mail-in votes to be received up to six days after Election Day in Wisconsin.
“The text of Article II means that the ‘clearly expressed intent of the legislature must prevail’ and that a state court may not depart from the state election code enacted by the legislature,” Kavanaugh wrote.
Justice Elena Kagan, in her dissent, said Kavanaugh’s suggestion is a bad idea and noted that state legislatures aren’t always quick to act or keen to act in voters’ best interests.
“(I)f there is one area where deference to legislators should not shade into acquiescence, it is election law,” Kagan wrote. “For in that field politicians’ incentives often conflict with voters’ interests — that is, whenever suppressing votes benefits the lawmakers who make the rules.”
Why his footnote is important
SCOTUS has been reluctant to step in when a state supreme court interprets a state constitution on election issues. If that were to change, as some justices believe it should (see Kavanaugh’s footnote), it could impact how presidential elections are run for decades to come.
There are at least two spots where this comes up in pending litigation.
One is Trump’s appeal this week of a Wisconsin state Supreme Court decision rejecting his arguments to throw out tens of thousands of ballots in Democratic-majority areas and let the GOP-controlled state legislature appoint presidential electors.
The other regards the Pennsylvania state Supreme Court’s move to allow mail-in ballots arriving after Election Day to be counted.
That may be the right vehicle for the debate, said Steve Vladeck, CNN Supreme Court analyst and University of Texas Law professor.
The case raises the legal issues because the state Supreme Court overruled the legislature, but it wouldn’t call the election result into question because Biden won the state by way more than the total number of affected ballots.
In addition, powerful Jones Day lawyers, including former Solicitor General Noel Francisco, representing the Republican Party conceded to the justices that their case was an “ideal vehicle” to look at the dispute “because it will not affect the outcome of this election.”
Roughly 10,000 mail-in ballots arrived in the allowed window of three days after Election Day, according to the Pennsylvania secretary of state’s office, and those votes would presumably be the only ones directly impacted should SCOTUS say the state supreme court got things wrong.
Already, those votes have been kept segregated due to an Alito order last month, so they haven’t been included in county and state totals, according to the secretary of state’s website.
Interestingly, the justices have placed the Pennsylvania mail-in ballot dispute on the list of cases they will discuss in their private meeting on January 8.
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