Justice Samuel Alito sits during a group photo of the justices at the Supreme Court in Washington, DC, April 23, 2021. (Erin Schaff-Pool/Getty Images)

Friday eveningas reporters logged off, the Supreme Court dropped a hint about whether it would take up cases that could determine the outcome of a close election in the coming weeks. Specifically, the clue came in a statement from Justice Samuel Alito. Spoiler: He’s open to it.

Alito’s missive came as the Supreme Court declined to take up a case involving absentee ballot in Pennsylvania. The Republican National Committee had asked the court to overturn a Pennsylvania Supreme Court ruling allowing voters who forgot to place their mail-in ballots in a secrecy envelope to vote provisionally. In refusing to intervene, the Supreme Court allowed some valid Pennsylvania voters who made an error in returning their mail-in ballots to vote anyway. The RNC had asked the United States Supreme Court to stop them.

In response, the justices unanimously refused to disenfranchise those voters and created the impression of a Democratic victory and broader voting rights. Technically, it is TRUE. But to indicate whether the justices intend to interfere in the outcome of the election, the message was muddled by Alito’s speech. while writing.

Typically, the justices would not have considered such a case, because the Supreme Court is not supposed to second-guess state courts’ interpretations of a state law. But these are not normal times. Last year, the justices ruled that second-guessing state courts was within their jurisdiction if 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’s decision “transgresses the ordinary limits of judicial review” at the expense of the state’s legislative branch. State. This is a vague and untested standard, and this is the first election under this 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 order, Alito agreed with the rest of the justices not to take the case but I noted it to the facts of the case, which he said limited the court’s ability to grant the RNC the relief requested regarding the ban on provisional ballots for spoiled absentee ballots. Judges Clarence Thomas and Neil Gorsuch joined Alito’s statement. In the past, factual issues have not stopped the conservative wing of the Court from taking up and deciding any case it wants. There is the website designer who wanted to discriminate against a customer who did not exist; the football coach who claimed he prayed alone even though photos showed him surrounded by players; and the case against President Joe Biden’s student loan forgiveness plans on behalf of an entity that wanted nothing to do with the matter. The patience of Robert’s court is not something to be taken for granted. So was the show of restraint with the case of Pennsylvania a sign that judges will not get involved in the 2024 elections?

Probably not.

Alito signaled that he and his two colleagues could reopen this specific dispute and others like it in the coming weeks if another case comes forward. He called the Pennsylvania Supreme Court’s decision “controversial” and the issue at hand “a matter of considerable importance.” Like legal journalist Chris Geidner notethis language is “a sure signal from the trio to the RNC, Donald Trump and other possible litigants” and “clearly a set-up.” If Trump or his allies want to file a new lawsuit after the election, at least three judges would be willing to take up the case. The question is: Would a majority be willing, as this case demands, to deny people the right to vote? A framework for examining a possible response this is comparing the 2000 elections to the 2020 elections.

In 2000, the presidential election came down to a few thousand votes in Florida. It was unclear who would ultimately be the winner if all of Florida’s votes were counted, but as of mid-December, George W. Bush held a 537-vote lead. The Florida Supreme Court had ordered a statewide recount of some ballots, so the Bush campaign asked the Supreme Court to intervene. So when the justices halted the recount in a 5-4 decision, they handed the election to Bush in 2017. Bush versus Gore. In fact, they chose the president in a coin toss situation.

In 2020, by contrast, there were numerous requests to the federal courts, including the Supreme Court, to throw out the ballots and hand the election to President Donald. Asset. Efforts to contest the election came days, if not weeks, after it became clear that, with nearly every swing state declaring Joe Biden the winner, this was not an indecisive election. It was, barring very significant judicial interference, an insurmountable avenue, and despite its protests, Trump had lost. In such a situation, the intervention of the Supreme Court would have endangered the reputation of the court. Why help Trump when it would have given Biden, who would become president, just one very good reason to consider court reform?

If tomorrow’s results look like a Bush versus Gore scenario, particularly if the single oscillating state of Pennsylvania looks like the new Florida, the right flank of the Court could have the opportunity to help elect Trump. After all, the court taken multiple measures to help Trump retake the White House, including by scuttling his criminal trial for his involvement in the January 6 insurrection. They also showed their willingness to help the Republican Party during their recent election campaign. decision to allow Virginia to remove voters from the voting rolls in a manner contrary to federal law. Intervening again would be a continuation and not an aberration.

But if tomorrow’s results look more like those of 2020 and within a few days Harris is the clear winner, a majority of justices may find it unwise to crane Trump’s neck. Famous, Trump don’t like being associated with “losers”. Judges may feel the same way.