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Early voting is under way in most states, and upwards of 50 million people have already cast their ballot. But the national apparatus Republicans have built to make it harder to vote and to sow public doubt about a potential Democratic win in this year’s elections is kicking into overdrive in the final week before Election Day.
The election subversion campaign is a continuation of the same playbook that underlay former President Donald Trump’s efforts to overturn his loss in the 2020 elections, centered around a barrage of disinformation and a deluge of courtroom challenges, as much as straightforward rule-breaking and the ever-looming threat of physical violence.
One of the central components this year is a contingency plan to overturn the results in the event that Trump loses, by interfering with the process by which Congress certifies Electoral College votes from the states, which Trump referred to as his and House Speaker Mike Johnson’s “little secret” on Sunday.
But historically, at least, the courtroom battles dealing with what votes and voters actually get counted have proven most impactful. And this year, GOP officials and lawyers are better prepared, boasting of over 130 election-related cases already, according to CNN. Conservative justices have proven much more willing to insulate and boost Trump and the Republican Party, even in the face of near-unanimous consensus that federal and constitutional law cuts against their positions.
The Supreme Court issued an emergency, or “shadow docket,” ruling yesterday, for example, which will allow a voter roll purge in Virginia targeting suspected noncitizens, five days before Election Day. The one-paragraph order was unexplained, and split along partisan lines, with all of the Court’s three liberals dissenting. The case is expected to affect more than 1,600 people, and recent reporting by the NBC affiliate in Northern Virginia shows that the purge has included lifelong Americans, and will likely overburden people of color.
Moreover, the Court’s ruling throws the “Purcell principle”—a doctrine which holds that courts should avoid changing electoral rules in the lead-up to an election—into further disarray. The doctrine was poorly defined when it was created in 2006, and the justices have since allowed it to be applied in unprincipled, seemingly outcome-driven ways, characterized by improbably high partisan alignment, as election law expert Wilfred Codrington III of the Benjamin N. Cardozo School of Law put it in September.
Sixteen hundred voters might seem like a small number, and Virginia is not likely to be a swing state at the presidential level this year. But that ruling alone demonstrates the tremendous power the Court has, and often exerts, over elections and Democratic processes, and how it could again have a significant effect on or even decide the 2024 presidential election.
Anti-voting litigation this election cycle has mostly focused on rejecting provisional ballots, which are generally for voters whose eligibility is uncertain due to some recordkeeping or other technical issue; as well as any ballots that aren’t cast in person on Election Day, like the increasingly popular mail-in ballots, or those cast by military and other voters overseas.
Anti-voting litigation this election cycle has mostly focused on rejecting provisional ballots.
On October 25, the U.S. Court of Appeals for the Fifth Circuit held that it is illegal to count ballots mailed before Election Day that arrive afterward—a process that 18 states and the District of Columbia currently have in place, including swing states like Pennsylvania, North Carolina, and Nevada, and states critical to control of the House of Representatives like California and New York. The Fifth Circuit judges held that their ruling doesn’t have immediate effect, and is limited to Mississippi, but that could change as the case continues. It’s more than likely that this won’t happen until after this year’s elections, but it sets up a potential future ruling that would make it more difficult to vote by mail and be assured those votes count.
On Tuesday, federal judges rejected two GOP-backed challenges of certain voters’ rights, including a bid by the Republican National Committee and the North Carolina Republican Party to purge 225,000 voters who they claim are potentially ineligible, and another by congressional Republicans that sought to implement added vetting processes in Pennsylvania for military and other overseas voters, and to segregate their ballots, which probably would have meant that they wouldn’t be counted until sometime after Election Day. The Supreme Court on Tuesday also rejected an emergency appeal by Robert F. Kennedy Jr. to remove his name from the presidential ballot in two swing states, a petition apparently calculated to increase the odds of a win for Trump, whom Kennedy endorsed after canceling his own independent campaign.
Those court rulings preserve the status quo, meaning that tens of thousands of otherwise eligible voters will avoid the potential of being disenfranchised in the November 5 elections. And they’re part of a pattern in which lower-court federal and state judges have mostly rebuffed Republicans’ courtroom efforts to challenge the voting rights of various groups.
Still, as things stand, the Supreme Court has already decided one major petition that affects this year’s presidential elections, in the Virginia case, despite what appears to be a Purcell principle violation. And the Court still has another petition, from Pennsylvania, that could affect the outcome of next week’s vote, in addition to making it much harder for Americans and particularly Democrats to vote well beyond 2024.
On Monday, Pennsylvania Republicans petitioned the justices for a ruling that would bar voters who make a mistake on their mail-in ballots from being allowed to cast a provisional ballot on Election Day that will actually be counted. Justice Samuel Alito, who has responsibility for emergency appeals from Pennsylvania, asked the parties to file written arguments yesterday. And the RNC has asked the Court to rule on the matter by Friday, November 1.
The Court’s conservatives could very well rule in favor of the GOP in Pennsylvania, despite the fact that there’s been no evidence produced to support this heightened scrutiny toward voters. And there is a possibility—although it’s only an outside chance—for such a ruling to affect the results of the 2024 presidential race in Pennsylvania, a crucial swing state that could decide the winner of the election.
The question in Republican National Committee v. Genser is focused on voters who submit a mail-in ballot on time, but fail to insert it into a so-called “secrecy” envelope before putting it into an outer envelope for mailing. The RNC has also homed in on other technical defects, like missing dates. The Pennsylvania Supreme Court decided on October 23 that citizens have a right to submit a provisional ballot if their mail-in ballot is disqualified for the secrecy envelope defect, writing that voting laws are enacted “with the purpose of enabling citizens to exercise their right to vote, not for the purpose of creating obstacles to voting.”
The RNC and state GOP then made an emergency petition to the Supreme Court, asking it to block the state high court’s ruling.
It’s difficult to accurately determine the number of votes at stake in the Pennsylvania case. A conservative estimate by Vox that was focused on the secrecy envelope defects showed that a ruling in the GOP’s favor could mean more than 17,000 votes could be tossed out. Another estimate by New York University law professor Richard Pildes, which included other kinds of defects that Republicans have targeted, suggested that up to 25,200 ballots could be voided.
It’s unclear which party would benefit from extinguishing those votes, though in prior years, more Democrats have relied on the mail-in balloting process. And the fact that the RNC is pushing the issue suggests that they believe that throwing out those votes would favor their party.
It’s unlikely a decision in the case would effectively decide the 2024 election, but the race for president is expected to be quite close, and that points to a history-making possibility: a Court ruling that flips the result.
In any event, all of the recent voting rights petitions to the Court have the potential to further erode voting rights in the country beyond 2024. The Court’s order in the Virginia case makes legal room for voter-roll purges and the targeting of naturalized citizens, even shortly before an election. And the forthcoming ruling in Pennsylvania might represent another precedent that allows the justices to intervene in the election process in important ways, and in crucial states, even when their interventions appear calculated to restrict basic democratic rights, or to favor one party or candidate over the other.
