Election lawyers and experts say it’s unlikely the U.S. Supreme Court will hear an election-related case after Nov. 5, let alone cast a decisive vote.
“It should be very, very close,” Holtzman Vogel partner Jason Torchinsky told Fox News Digital. “If you look at the history of post-election litigation, the only places where it has been successfully outcome-determining are really places where the voting is very close.”
“If there is a genuine issue, the court will consider it. If it’s something that the Court doesn’t think is worth taking a high-level approach to, they will summarily affirm it,” Torchinsky said.
The statute states that “any action brought by an aggrieved candidate for President or Vice President” shall be heard by a district court with a three-judge panel. It is then “the duty of the court to proceed with the case and expedite the disposal of the action to the maximum extent possible.”
Parties are then allowed to directly request review of the decision by the US Supreme Court on an expedited basis.
“This creates a new path in federal court for specific limited issues that can be raised under the Electoral Count Act,” said Greg Teufel, founder of OGC Law. “However, there are very limited issues that can be raised under that Act. Therefore this is not a broad expansion or increase in the likelihood of litigation reaching the federal courts or the US Supreme Court under the Electoral Reform Act.
Teufel said that for an election case to be taken up by the court, “there must be allegations of significant and proven fraud or other serious violations of the law in the way elections are conducted or votes are processed.”
Republicans and Democrats alike have filed a flurry of election-related lawsuits ahead of Nov. 5, including a recent Georgia case that found county election officials suspected fraud or mistakes despite legal time. To the extent the results have to be certified.
Joseph Burns, partner at Holtzman Vogel, notes that Republicans may prove successful in election litigation depending on the composition of the court.
“In terms of the composition of the court, there’s no doubt that you have six Republican judges appointed at this time,” Burns said. “And these are generally the people who, I think, are going to interpret what needs to be interpreted, whether it’s state statute or federal statute. Their general philosophy is to follow the words of the law as closely as possible.
Burns added, “You have a more conservative-minded Supreme Court in this regard.” “And you certainly have Republicans who generally make these types of arguments about courts interpreting statutes or state constitutions, for example, in a strict manner. So I think in that regard, given the arguments generally made by each side, the Republicans will be in a better position.
However, Sandler Reiff attorney John Hardin Young told Fox News Digital that he believes it is highly unlikely that the Supreme Court could decide the 2024 election, especially considering the conservative majority.
“I think the nine justices now have the sensitivity not to get involved unless it’s absolutely necessary,” Young said. “I think there is a certain amount of bias in the majority on the Supreme Court that if they believe that the process is being corrupt or that people are not following the rules, they get involved because the majority, I think, wants democracy. “It depends on people following the rules.”
“There are so many unknowns, we’ll have to see how things play out,” said Jeff Wise, a professor at New York Law School.
Although ECRA attempted to clarify and modify the casting and counting of electoral votes, Teufel said the law as a whole could become the target of litigation after November 5.
“If this act is used in such a way that it affects the outcome of an election in a way that people consider it unfair, unreasonable or illegal, then the entire act could come under challenge,” Teufel said. ” “Both parties are disappointed that constitutional questions may arise over how the election count is conducted, the laws used, and the process used to count the votes.”
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