Judge Alito has already set the stage for a showdown in the Supreme Court election – Mother Jones

Justice Samuel Alito sits during a group photo of Supreme Court justices in Washington, D.C., April 23, 2021. (Erin Schaff-Poole/Getty Images)

Friday nightJust as reporters were logging off, the Supreme Court signaled whether it would hear cases that could determine the outcome of close elections in the coming weeks. In particular, the hint was contained in a statement by Judge Samuel Alito. Spoiler: He’s open to it.

Alito’s message comes after the Supreme Court declined to hear the case. voting by mail in Pennsylvania. The Republican National Committee has asked the court to overturn a Pennsylvania Supreme Court decision allowing voters who forgot to place their mail-in ballot in a secrecy envelope to cast a provisional ballot. By refusing to vote, the Supreme Court allowed some valid Pennsylvania voters who made a mistake when returning their mail-in ballots to I’ll still vote. The NRC had asked the US Supreme Court to stop them.

In response, the justices unanimously refused to disenfranchise these voters and created the appearance of a Democratic victory and greater voting rights. Technically it’s true. But in a signal about whether the justices intend to interfere with the outcome of the election, the message was muddied by Alito’s statement. letter.

Normally, judges would not hear such a case because the Supreme Court is not supposed to question the interpretation of state law by state courts. But these are not normal times. Last year, the justices decided it was within their jurisdiction to question whether the state law they were interpreting was related to elections. IN Moore v Harper, The Supreme Court has given itself the power to intervene in matters of state election law if a state court decision “violates the normal scope of judicial review” to the detriment of the state legislature. It’s a vague and untested standard, and this is the first election under the new precedent. The Supreme Court has now become a sword of Damocles hanging over every state court decision regarding election procedures.

In a statement accompanying the court’s order, Alito agreed with the other justices not to hear the case, but wrote it down with chalk to the facts of the case, which he said limit the court’s ability to grant the RNC its requested relief from the ban on provisional voting for spoiled mail-in ballots. Judges Clarence Thomas and Neil Gorsuch joined Alito’s statement. In the past, factual problems did not stop the conservative wing of the court from hearing and deciding whatever cases they wanted. Eat website designer who wanted to discriminate against a client who did not exist; football coach who claimed to have prayed alone when photographs showed him surrounded by players; and the case against President Joe Biden’s student loan forgiveness plans on behalf of an organization that wanted nothing to do with the matter. Robert’s patience with the court is not something to be taken for granted. It was a show of restraint with the Pennsylvania case a sign that judges will not participate in the 2024 elections?

Probably not.

Alito has signaled that he and two of his colleagues could reopen this particular dispute and others like it in the coming weeks if another case is presented. He called the Pennsylvania Supreme Court’s decision “controversial” and the issue at hand “a matter of significant importance.” As legal journalist Chris Geidner markedthe language is “a clear signal from the trio to the RNC, Donald Trump, and other possible parties to the case” and is “clearly fraudulent.” If Trump or his allies want to file a new lawsuit after the election, at least three judges would be willing to take the case. The question is, will the majority be willing, as in this case, to deny people the right to vote? One basis for finding a possible answer by comparing the 2000 election with the 2020 election.

In the 2000 presidential election, several thousand votes were cast in Florida. It was unclear who the eventual winner would be if all of Florida’s votes were counted, but by mid-December George W. Bush was leading by 537 votes. The Florida Supreme Court ordered a recount of some ballots across the state, so the Bush campaign asked the Supreme Court to intervene. So when the justices stopped the recount in a 5-4 decision, they handed the election to Bush. Bush vs Gore. Essentially, they elected a president in a difficult situation.

On the other hand, in 2020 there were many calls for federal courts, including the Supreme Court, to throw out ballots and hand over the election results to President Donald Trump. Trump. Efforts to challenge the election results came days and even weeks after it became clear that, with nearly every swing state declaring Joe Biden the winner, the election was not inconclusive. This was, apart from very significant judicial intervention, an insurmountable advantage, and, despite its protests, Trump lost. In such a situation, intervention by the Supreme Court would jeopardize his reputation. Why help Trump if it would give Biden, who becomes president, only a very compelling reason to consider judicial reform?

If tomorrow’s results look like Bush vs Gore scenario, especially if the only fluctuating state is With Pennsylvania looking like the new Florida, the court’s right flank could face the opportunity to help elect Trump. After all, the court has taken some steps to help Trump retake the White House by first derailing his criminal trial over his role in the January 6 insurrection. They have also shown a willingness to help the Republican Party in their recent campaign. solution Allow Virginia to remove voters from the rolls in a manner that violates federal law. Re-intervention will be a continuation, not a deviation.

But if tomorrow’s results look more like those of the 2020s and Harris emerges as the clear winner in a few days, a majority of judges may find it unwise to back Trump. As you know, Trump doesn’t like associate with “losers”. The judges may feel the same way.