Other lawsuits on various issues, however, are already in the works that could wind their way through the appellate process quickly.
Republicans in Pennsylvania on Tuesday filed a lawsuit in one one county in the Philadelphia suburbs, alleging that officials illegally allowed mail-in ballots to be counted before Election Day. A hearing is scheduled for Wednesday at 9 a.m.
Key State
And Republicans are already asking the Supreme Court to block mail-in ballots from being counted in Pennsylvania if they arrive after Tuesday. The Pennsylvania Supreme Court previously ordered a three-day extension for ballots to arrive, saying it was required by the state constitution, and the U.S. Supreme Court temporarily left the ruling intact on a 4-4 vote.
The justices may revisit the question, and ballots received after Tuesday are set to be kept separate, pending further litigation.
“Four conservative justices have already declared that they are willing to review the case after the election. They left open the door,” said Ilaria Di Gioia, Associate Director of the Centre for American Legal Studies at Birmingham City University in the U.K. “The issue is whether it should be up to the state legislature or up to the Supreme Court to decide how to count votes.”
Republicans are banking on newly confirmed Justice Amy Coney Barrett to make the difference. Trump appointed three judges to the Supreme Court during his first term, including Coney Barrett who was confirmed just a week before the election, to cement a conservative majority on the bench.
No Guarantee
But Republicans also would need to persuade the court’s other conservatives to invalidate ballots from voters who might have been relying on the extension, and that’s no guarantee, says Russell Miller, a professor at Washington and Lee School of Law in Virginia.
“If you happen to have a lawsuit, it definitely doesn’t hurt if you get to pick the judges,” said Miller, who is teaching at the Max Planck Law Network in Frankfurt. But Chief Justice John Roberts, a Republican appointee, has recently opposed his conservative peers.
“Sometimes judges are willing to depart from the stereotype in an effort to protect the integrity of the institution,” he said.
The only time the Supreme Court has resolved a disputed presidential election was 2000, when the court sealed the election for Republican George W. Bush by stopping Florida ballot recounts that could have swung that state for Democrat Al Gore. The high court said the different standards for counting ballots around the state violated the Constitution’s equal protection clause. Bush won the state by 537 votes.
—With assistance from Jonathan Browning, Greg Stohr and Karin Matussek.
This article was provided by Bloomberg News.