Why the Supreme Court Might Cast the Final Vote for President

[mahatmakanejeeves]

Last edited Thu Oct 10, 2024, 10:33 AM - Edit history (1)

Hat tip, SCOTUSblog

WHAT WE'RE READING
The morning read for Thursday, Oct. 10
By Ellena Erskine
on Oct 10, 2024 at 10:01 am

Each weekday, we select a short list of news articles and commentary related to the Supreme Court. Here’s the Thursday morning read:

• U.S. Supreme Court to hear case on disputed West Texas nuclear waste plan (Travis Bubenik, Marfa Public Radio)
• US Supreme Court signals concern over Glossip death penalty decision (John Kruzel & Andrew Chung, Reuters)
• U.S. Supreme Court hears arguments on Oklahoma capital conviction of Richard Glossip (Nuria Martinez-Keel, Oklahoma Voice)
• Why the Supreme Court Might Cast the Final Vote for President (Aziz, Huq, Politico)
• FBI probe of Kavanaugh constrained by Trump White House, report finds (Beth Reinhard, The Washington Post)

Posted in Round-up

Recommended Citation: Ellena Erskine, The morning read for Thursday, Oct. 10, SCOTUSblog (Oct. 10, 2024, 10:01 AM), https://www.scotusblog.com/2024/10/the-morning-read-for-thursday-oct-10/

On the Bench

Why the Supreme Court Might Cast the Final Vote for President

Three scenarios for major interventions.

By Aziz Huq
10/09/2024 12:00 PM EDT

Aziz Huq teaches law at the University of Chicago and is the author of The Collapse of Constitutional Remedies.

The new Supreme Court term that began this week isn’t overflowing with obvious blockbusters. The justices have taken one big culture-war case — a challenge to Tennessee’s ban on gender-affirming health care for trans youth — but turned down invitations to deepen the court’s assault on the administrative state.

Will such modesty last? One reason to think not is this: The presidential election cycle is just getting to the point where political conflicts could mutate into constitutional cases. In fact, the Supreme Court has already shown it is unafraid to scramble electoral rules mere weeks before balloting starts: It recently accepted a Republican effort to require proof of citizenship for some Arizona ballots.

It’s impossible to predict whether another Bush v. Gore is around the corner. Yet the court may well soon face a high-profile dispute with no obviously “right” legal answer — and where the result decides the election. ... Three paths already exist for the Supreme Court if it wants to reshape the 2024 outcome.

The first path lies through a challenge to a state court’s ruling on state election law. The Supreme Court ordinarily hears only federal law cases. But a 2022 decision in Moore v. Harper held that the justices could step in if state judges “exceeded the bounds of ordinary judicial review” in ruling on state election law. The justices never clarified what this vague language could entail. This means they have a free hand to second-guess state courts’ state law decisions when it comes to federal elections.

{snip}

[Passages]

1. I will never trust the 6, never.

[Fiendish Thingy]

2. You left out the most likely scenario, and most important paragraphs

Until recently, the answer was not much. The 1887 Electoral Count Act said that submissions by a December “safe harbor” date were treated as “conclusive,” but late submissions could still be considered. However, when Congress revised that statute in 2022 to try to prevent another instance of the fraud and chaos that took place on Jan. 6, 2021, it amended the “safe harbor” deadline to make it mandatory. The statute, however, is silent as to what happens if a state blows by the must-submit date. Can Congress still consider the slate? Or would the state’s Electoral College seats be eliminated from the final tally? The new law punts this question to the courts, and it creates a fast-track mechanism for certification-related disputes to reach the justices.

Imagine, then, that the MAGA-backed Georgia state election board refuses to certify a Harris victory. To be sure, state law imposes what some call a “crystal clear” deadline on the state’s certification. But the board’s MAGA members could say their constitutional oaths forbid them from heeding a state law that requires them to bless what they (falsely) label a fraudulent result. Conflict over state law might well tie the governor’s hands — opening the gate to a legal challenge under the amended Electoral Count Act.

And if that happens, the justices will be in the awkward position of trying to fill a gaping gap in the new statute —which, remember, doesn’t say what to do if no slate is certified — in a case that determines who takes the presidential oath a few weeks later.

The author leaves out one important piece of information: when the ECRA triggers a review by a panel of federal judges, that panel must rule at least one day before the safe harbor date. That ruling could be appealed to SCOTUS, and the timing of their ruling is the only gray area I can see in this scenario.

I agree that GA is the most likely candidate for the ECRA to be triggered, but if it is the only state this happens in, won’t be critical to a Harris victory, as she has multiple paths to victory without GA, where it’s nearly impossible for Trump to win without GA.