SCOTUS Signals It May Be Coup Curious This Election Cycle

Given half a chance, they'll do it.

Last week, three Supreme Court justices — you know the ones — sent up a flare to election deniers. Captioned as a statement regarding denial of a stay, it was functionally an engraved invitation, promising a warm reception at One First Street to anyone seeking to overturn the election.

The love note came in response to an emergency application for stay of a Pennsylvania Supreme Court decision filed by the Republican National Committee. The underlying case involved two voters who failed to include the required security envelopes with their mail-in ballots during the primary. They received emails notifying them of the defect and directing them to cast provisional ballots on election day at their regular polling place. But when they did as instructed, the Butler County Board of Elections (BOE) refused to count their ballots.

The voters sued, and the RNC intervened, arguing that Pennsylvania law deems a ballot “cast” when it is delivered to the registrar, even if it is defective and therefore void. But the Pennsylvania Supreme Court disagreed, holding that the BOE unlawfully rejected the provisional ballots under state law:

Subsection (a.4)(5)(i) required that, absent any other disqualifying irregularities, the provisional ballots were to be counted if there were no other ballots attributable to the Electors. There were none. Subsection (a.4)(5)(ii)(F) provides that the provisional ballot “shall not be counted if the elector’s absentee ballot or mail-in ballot is timely received by a county board of elections.” 25 P.S. § 3050(a.4)(5)(ii)(F). Again, there were no other ballots attributable to Electors, so none could be timely received.

The decision drew a vigorous dissent from conservative Justice Sallie Mundy, who all but instructed the RNC to take a flyer at the Supreme Court on independent state legislature grounds.

Proponents of the independent state legislature theory (ISL) believe that judges, election officials, and even the voters themselves are constitutionally barred from making rules regarding elections. They interpret the Constitution’s Elections Clause, which says that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” as vesting this power solely in the legislature. In 2020, ISL was the putative justification for efforts to reconvene state legislatures to claw back President Biden’s electoral votes and award them to Trump. Proponents also cited the Bush v. Gore holding, in which the Supreme Court described the legislators’ power over elections as “plenary.”

In 2023, the Court rejected a maximalist version of ISL in a case called Moore v. Harper. The six-member majority found that courts may interpret election law, so long as they don’t “transgress” the boundaries of judicial review — whatever that means. The opinion drew a dissent from guess which three justices, and in her own dissent Justice Mundy suggested that the Pennsylvania Supreme Court’s ruling in the “naked ballot” case was just such a transgression:

Given the Majority’s interpretation of the Election Code, I find merit to Appellants’ argument that this Court has exceeded the scope of judicial review and usurped the General Assembly’s power to regulate federal elections. As the United States Supreme Court has recently held, “state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”

On October 28, the RNC heeded Justice Mundy’s unsubtle suggestion that the RNC seek review under Moore, racing to the Supreme Court and requesting that it either order Pennsylvania not to count provisional ballots from voters who botched their mail-ins, or alternatively to order election officials to segregate those provisionals and allow them to fight over them post-election.

“When the legislature says that certain ballots can never be counted, a state court cannot blue-pencil that clear command into always,” the RNC argued, referencing both Moore and Bush v. Gore.

On Friday, the Court denied the motion, although Justices Alito, Thomas, and Gorsuch made it clear that they would dearly love to help these guys out with this “matter of considerable importance.” Writing for the group, Justice Alito called the state court’s ruling “controversial” and repeated the RNC’s framing of the issue, suggesting that it violated both Pennsylvania state law and the US Constitution. But he said that the Court lacked authority to issue statewide relief in a case that involved just two ballots from an election that took place in April, particularly when the only defendant was the Butler County Board of Elections.

“Staying that judgment would not impose any binding obligation on any of the Pennsylvania officials who are responsible for the conduct of this year’s election,” he lamented. “And because the only state election officials who are parties in this case are the members of the board of elections in one small county, we cannot order other election boards to sequester affected ballots.”

The vast majority of shadow docket rulings are without explanation, and so it’s notable that three justices are openly signaling that the RNC should bring an ISL-based challenge to provisional ballots in Pennsylvania. By law, the state doesn’t begin counting provisional ballots until the Friday after the election, and if the count is very, very close, a few thousand provisional ballots might become critical. In that event, the Trump campaign has every incentive to make a beeline for the Supreme Court and hope their buddies will do them a solid.

On the plus side, this statement only got support from the same three justices who dissented in Moore. Perhaps that means that there’s not a lot of appetite among the Court’s other three conservatives to squander the pitiable remains of their legitimacy on Trump. Or perhaps they’re simply refusing to tip their hand when their help may not be needed. After the immunity decision (and the Colorado ballot disqualification decision, and the Fischer decision undercutting the January 6 prosecutions), we should probably anticipate that the howler monkeys will do what they have to do to put their thumb on the scale for the former president.

On the plus side, outsourcing GOTV to Elon Musk appears to have been a spectacularly terrible decision for the Trump campaign, and Democrats hold a healthy lead in early vote returns in the Keystone. So perhaps the Court will conclude, as Bill Barr did in 2020, that flipping the election would require far too much public cheating to be doable. But if these assholes can find a way to Bush v. Gore it, you know they will.