Washington — With the election now just days away, the battle for the presidency is being waged not just at the ballot box but also in courtrooms in an election cycle marked by scores of lawsuits brought by both parties.
While many of the cases involve disputes over state laws that will be decided by state courts, some cases may wind up before the U.S. Supreme Court, though many observers believe the court will try to stay out of the election.
Ever since the high court’s controversial ruling in Bush v. Gore in 2000, the possibility that the Supreme Court might decide a close presidential contest has loomed over electoral politics. And while that improbable scenario is unlikely to repeat, the proliferation of lawsuits this cycle has increased the odds that the Supreme Court may be forced to intervene yet again.
The high court declined to step into long-shot disputes from former President Donald Trump’s allies that challenged the results of the 2020 election, and so far during the 2024 general-election cycle, it has largely rejected chances to alter the status quo, suggesting a reluctance to intervene. Although the court partially intervened in a dispute over a proof-of-citizenship requirement in Arizona, it declined to grant relief in the Green Party’s bid to put Jill Stein on the Nevada ballot and Robert F. Kennedy, Jr.’s request to reinstate him to the New York ballot. Just last week, Kennedy submitted two more requests — this time, to be removed from the Wisconsin and Michigan ballots — that the Supreme Court is expected to deny, too.
With early voting underway in more than three dozen states — and millions of votes cast so far — the Supreme Court typically abides by a principle, stemming from a 2006 decision, under which courts should exhibit caution before changing election rules too close to an election to avoid confusing voters and election officials with late-stage changes.
That doesn’t mean the losing parties will refrain from asking the Supreme Court to hear their appeals, even though lower courts have ruled that many of these cases were filed too late.
“Some of the challenges could have and should have been brought a long time ago. Those the court won’t entertain,” said Alan Morrison, an associate dean at George Washington Law School.
But the court may be inclined to act in cases that couldn’t have been resolved sooner or where lower-court rulings could have dramatic consequences. And post-Election Day cases could arise from allegations of voter fraud, some of which “are inevitably late and the court is going to decide what to do with them,” Morrison said.
Trump and his GOP allies filed more than 60 lawsuits in federal court alleging voter fraud following the 2020 contest. The vast majority were rejected or withdrawn. This cycle, the Republican National Committee has filed 130 suits in 26 states ahead of the election, it said. The Democratic National Committee did not return a request for comment.
With close to 200 cases brewing across the country, many in the battleground states that will decide the election, here are some that could land before the justices:
Removal of potential noncitizens from voter rolls in Alabama and Virginia
The Justice Department filed lawsuits against Virginia and Alabama over their efforts to remove noncitizen voters from registration rolls, which federal prosecutors say violates the National Voter Registration Act.
A provision of that law, known as the Quiet Period Provision, requires states to complete programs that systematically remove ineligible voters from registration lists by 90 days before the election. The Justice Department argued that Alabama began an unlawful process for removing roughly 3,000 potential noncitizens on Aug. 13, 84 days before the Nov. 5 election. Prosecutors said more than 700 of those people have re-registered and returned to active status but “several hundred or even thousands more” remain inactive and risk disenfranchisement.
A federal judge blocked Alabama earlier this month from continuing the program to remove ineligible voters from registration lists and stressed that the order does not restrict the secretary of state’s ability to remove noncitizens from Alabama’s voter rolls. She also ordered the state to restore deactivated voters.
The Justice Department filed another lawsuit against Virginia earlier this month. It targeted Virginia Gov. Glenn Youngkin’s executive order that created a program to remove from state voter rolls people who tell the Department of Motor Vehicles that they are noncitizens and who do not verify their citizenship with local registrars after they are notified they will be removed from voter rolls. Youngkin announced the program exactly 90 days before Election Day, and the Justice Department argues that these removals are prohibited during the so-called quiet period.
A federal judge on Friday blocked Virginia from continuing its program and ordered the state to restore the roughly 1,600 voters who were purged to registration rolls. The judge said the state must send notices to those who had their registrations canceled under the state’s program.
Virginia officials asked the 4th Circuit to pause the district court’s order, and on Sunday, the appeals court largely declined their request. The three-judge panel said in a brief order that it is “unpersuaded” by the state’s argument that its program doesn’t violate the National Voter Registration Act.
They then asked the Supreme Court on Monday to pause the district court’s order and requested it act quickly — by Tuesday.
Late-arriving mail ballots in Mississippi
Under a Mississippi law passed in 2020, election officials count mail ballots that are received up to five business days after Election Day, so long as they are postmarked on or before Election Day. Seventeen other states and the District of Columbia have laws like Mississippi’s and accept ballots postmarked by Election Day that arrive days after.
The Mississippi Republican Party, the Republican National Committee, and two Mississippi voters sued the state and county election officials in January, arguing this practice violates a federal law establishing a uniform, nationwide Election Day by extending the election into the following week.
They asked a federal district court to invalidate the Mississippi law and block the state from enforcing it. But voting rights groups that sought to intervene in the case argued that striking down the law threatened to disenfranchise voters.
The district court sided with the state election officials in July, and Republicans appealed to the U.S. Court of Appeals for the 5th Circuit, which reviews cases from Louisiana, Mississippi and Texas and is a favored venue for conservative litigants.
But in a win for Republicans, the appeals court on Friday struck down the Mississippi measure, finding it is preempted by federal law. The three-judge panel did not say how the state should handle late-arriving ballots for next week’s election and sent the case back to the district court to determine how to proceed given the close proximity to Election Day.
Elections officials could ask the Supreme Court to pause the 5th Circuit’s ruling.
Mail ballot procedures in Pennsylvania
Both parties have taken issue with mail ballots in Pennsylvania in two high-stakes cases. The Pennsylvania Republican Party and the Republican National Committee sued all 67 county boards of elections and the secretary of state to challenge Pennsylvania’s notice-and-cure policy, under which voters who cast ballots by mail are notified about and given a chance to fix technical errors with their ballots. And Democrat-affiliated groups challenged Pennsylvania’s policy of not counting mail ballots with incorrect or unwritten dates on the outer ballot envelopes.
The Pennsylvania Supreme Court declined to hear either challenge earlier this month, citing the parties’ delay in bringing them. The decision left both sets of policies in place — and the merits of both disputes unresolved.
If the presidential election comes down to a tight margin in fiercely contested Pennsylvania, Republicans and Democrats could use these unresolved concerns to challenge the tally of mail ballots in post-election challenges — which could very likely make their way up to the Supreme Court.
That said, not all mail-ballot challenges have been left unsettled. In a separate case, two voters in Butler County argued the county board was wrong to reject provisional ballots they cast during the primary after failing to enclose their mail-in ballots in secrecy envelopes. Both the Pennsylvania Republican and Democratic Parties intervened in the case.
A state trial court upheld the board’s decision not to count the provisional ballots, but the Pennsylvania Supreme Court sided with the voters and concluded that boards of elections must count provisional ballots cast by voters whose mail-in ballots are rejected for lacking secrecy envelopes.
Republicans asked the Pennsylvania Supreme Court to pause that decision while it seeks emergency relief from the U.S. Supreme Court.
Overseas and military voters in Pennsylvania, Michigan and North Carolina
Under a federal law known as the Uniformed and Overseas Citizen Absentee Voting Act, or UOCAVA,, Americans who live abroad may vote absentee in their state of prior residence. The law affects millions of Americans, including many members of the military and their relatives.
But Republicans filed three lawsuits to challenge the implementation of this law in federal court in Pennsylvania and state courts in Michigan and North Carolina.
In Pennsylvania, six Republican House members sued state officials for issuing guidance to overseas voters that exempts them from providing proof of their identities. In Michigan, the state Republican Party and the Republican National Committee sued state officials for permitting the non-Michigander relatives of residents to vote under UOCAVA procedures, which they said violates a state constitutional provision that allows only residents to vote in Michigan. In North Carolina, the North Carolina Republican Party and the Republican National Committee filed a lawsuit raising similar arguments.
State court judges in Michigan and North Carolina rejected the suits from Republicans. The RNC is appealing the North Carolina decision. In the Michigan case, Judge Sima Patel criticized the GOP challengers for what she said is an “11th hour attempt to disenfranchise” the spouses and dependents of overseas voters.
The federal judge hearing the Pennsylvania case has yet to rule.
In all three instances, the losing parties must make several stops before reaching the Supreme Court. The federal lawsuit from Pennsylvania would go to an intermediate appeals court first, while the Michigan and North Carolina cases would be heard by state appellate and supreme courts before arriving at the nation’s highest court.
Voter rolls in Michigan
The Republican National Committee and two voters filed a lawsuit against top election officials in Michigan in March alleging that the state failed to abide by the requirements of the National Voter Registration Act by having more active registered voters in some counties than residents over the age of 18.
Republicans claimed the state does not have accurate voter rolls and argued that failing to comply with voter-list maintenance obligations required by federal law threatened to undermine the integrity of the election by increasing the chance for allegedly ineligible voters to cast ballots.
A federal district judge dismissed the lawsuit earlier this week on technical grounds, finding that neither the RNC nor the voters had the legal right to sue. The judge also found that the Republicans failed to show “more than a mere possibility of misconduct.”
Hurricane-related anything
Disaster-relief cases constitute one exception to the presumption against judicial activity before elections. These suits present urgent problems, and because they arise from unpredictable emergencies, litigants are not penalized for failing to raise their claims sooner.
States across the South, including Florida, North Carolina, and Georgia, are reckoning with obstacles to voting access brought on by the devastation of Hurricanes Helene and Milton. In North Carolina alone, 1.5 million people live in areas ravaged by storms. In such places, the postal service has been unable to deliver and pick up mail, and physical voting facilities have been damaged or destroyed.
Still, in North Carolina, more than 2 million voters have cast ballots during the state’s early voting period, which began Oct. 17.
So far, no major cases look like they’re destined for Supreme Court review. Notably, Democrat-affiliated activist groups sued Florida Gov. Ron DeSantis to extend voter registration, because the Oct. 7 deadline fell between the two hurricanes. During that time, many Floridians were without power or outside the state after evacuating. A federal court rejected that challenge, and the plaintiffs have not yet appealed. But with six more weeks left in hurricane season and repairs continuing throughout the South, the possibility of additional litigation remains.
