Could the election in Pennsylvania be decided by Amy Coney Barrett? Probably not. Here’s why.
It would take an extraordinary set of circumstances. And if it did, it might not go the way you think. Here’s what we know.
Nobody wants to be the Florida of 2020.
But as Pennsylvania works to pull off the most complicated election in living memory, with the added pressure of being one of the most hotly contested battlegrounds in the presidential race, it’s being sued left and right. President Donald Trump has made the state a top target for his unfounded accusations of voter fraud and attacks on the electoral system.
Meanwhile, the U.S. Supreme Court deadlocked last week on whether to block a mail ballot deadline extension ordered by the Pennsylvania Supreme Court, just as Republicans were rushing to place Amy Coney Barrett on the nation’s high court. Barrett’s confirmation as a justice Monday has raised fears among Democrats that the court might now have a tie-breaking vote in Republicans' favor on this or other issues that could decide a close election.
Could the U.S. Supreme Court end up deciding the winner? And could it come down to Pennsylvania?
It’s certainly possible, top election law experts said, but there’s a pretty low chance of it happening. It would take an extraordinary set of circumstances. And if it did, it might not go the way you think.
Here’s what we know:
It’s a long shot.
So many things would have to happen for the U.S. Supreme Court to decide the presidential election based on a case coming out of Pennsylvania.
“It’s many steps before a Justice Barrett is the deciding vote that is picking Trump as president. So I think it’s important not to overstate the potential for this to happen,” said Rick Hasen, a law and political science professor at the University of California, Irvine, and a leading election law expert. “Everything would need to align in a particular way.”
First, the election would have to come down to Pennsylvania. That may very well not happen if the race continues on its current trajectory, with former Vice President Joe Biden consistently leading in polls of numerous battleground states.
Second, the race in Pennsylvania itself would have to be extremely close, with enough votes subject to challenge to make a difference in the outcome.
Third, a case would have to make its way up to the U.S. Supreme Court, and the court would have to agree to hear it. Lawsuits don’t just magically appear before the high court, and the process to get there could resolve issues long before then.
“We have to start from a baseline that all of the doomsday scenarios are low probability. And perhaps that will mitigate some of the freaking out,” said Franita Tolson, a law professor at the University of Southern California whose specialties include election and constitutional law. “We have spent a disproportionate amount of time trying to figure out what happens if the worst comes to pass.”
But it’s not impossible.
Pennsylvania, like many other states, has already seen a huge level of election-related litigation.
That’s likely to continue, experts said, for a number of reasons.
Pennsylvania has dramatically expanded its vote-by-mail system this year to allow any voter to use mail ballots, creating a massive administrative challenge. The state has significantly changed its election code twice in the last year, after decades of inaction, creating new opportunities for litigation. And Trump’s months of false attacks on mail voting have created a stark partisan divide in which Democrats are much more likely than Republicans to vote by mail — creating a strategic opening in which going after mail ballots ultimately means going after Democratic votes.
So it’s possible that Pennsylvania — which Trump won by 44,000 votes in 2016, or less than 1% of the total — could be close enough to be worth fighting over.
“That’s absolutely true that it would take a specific set of circumstances, but it’s not hard to imagine,” said Josh Douglas, a law professor at the University of Kentucky who specializes in election law and voting rights. “It’s not implausible.”
Considering last week’s 4-4 split in which the court’s four most conservative justices were willing to block the state court’s mail ballot deadline extension, Douglas said, it’s possible Barrett could tip the balance in either direction. The court on Monday sided with Republicans in preventing Wisconsin from counting mail ballots received after Election Day.
What would happen if a case ends up before the court? It’s complicated
On the one hand, experts said, courts generally try to avoid intervening in elections in a way that could affect the outcome. In particular, they don’t like to step on voters' rights by throwing out ballots that have been cast in good faith under an existing set of rules, even if the court decides those rules are actually unconstitutional.
So when the Supreme Court decided this month to reinstate South Carolina’s requirement that absentee ballots have witness signatures, it also grandfathered in all ballots received before that decision and in the two days after.
Something similar ought to apply in a potential case concerning something like Pennsylvania’s mail ballot deadline, experts said.
State law says ballots have to be received by county elections officials by 8 p.m. on Election Day. But the Pennsylvania Supreme Court last month ruled that ballots can be received by mail through the following Friday, Nov. 6, if they are either postmarked by Election Day or have missing or illegible postmarks. If voters rely on that extension when they vote — say, by waiting until Election Day to mail their ballots — the court might not reject those ballots even if it ultimately overturns the extension itself.
“Even if that extension is going to be considered erroneous ultimately by the Supreme Court … can you disqualify a ballot cast in good faith?” said Edward B. Foley, an Ohio State University law professor who is an expert on election law. “So timing may really end up being important here.”
Legal experts generally agree that the court would have strong reason not to make a move such as discarding mail ballots received under an existing deadline extension. But they also warned it can be foolish to try to predict what the Supreme Court will do.
That’s particularly true with the rare confluence of a new justice, a presidential election, and new election laws.
The “plate tectonics of the court” are shifting, Foley said, and it’s possible that principles around when to step into election cases and what to do with them might be changing: “If those precedents are now being questioned because of this jurisprudential revolution, who knows what the answer is?”
Bottom line: Get your ballot in.
For Pennsylvania voters, there’s one clear way to help prevent such a scenario: Get your ballot in on time, following all the instructions carefully, so there’s nothing to sue over.
“I want to make it clear, I honestly don’t care what the [Pennsylvania] Supreme Court said or didn’t say,” Secretary of State Kathy Boockvar, Pennsylvania’s top elections official, said last week in urging voters to return ballots as quickly as possible. “Ballots need to be mailed. If they’re going to be put in the mail, they need to be put in the mail this week. If they need to be dropped off, it needs to be done on Nov. 3.”
That’s the safest course of action, experts said, because those votes won’t be in question. The more votes come in by Election Day instead of afterward, the lower the chances a lawsuit swings the election.
And, Hasen said: “Say a prayer every night that it doesn’t come down to Pennsylvania. I do.”