Following the 2020 election, Donald Trump and his allies launched a barrage of legal cases to challenge the outcome. After facing losses in lower courts, some of these cases reached the U.S. Supreme Court, where Trump hoped the conservative justices would side with him. They did not; the court opted not to hear his appeals, rejecting the last three cases four months after the election.
As Trump seeks to regain the presidency in the upcoming election against Democratic Vice President Kamala Harris, the U.S. Supreme Court may experience a sense of déjà vu. Even before Election Day, several cases have already reached the justices, including one that revisits an issue from four years ago concerning Pennsylvania mail-in ballots. Legal experts anticipate a wave of litigation after the election, especially if Trump faces another loss in a tightly contested race.
“The question isn’t whether they will bring these claims. The question is whether the court will give them any consideration. The likelihood is they won’t,” said David Becker, executive director of the Center for Election Innovation & Research, a non-partisan group that promotes voter participation and election security.
This year, the Supreme Court has already supported Trump’s campaign by reversing a Colorado court’s decision that sought to disqualify him from the Republican primary ballot under a constitutional provision related to insurrection. Additionally, the court ruled in July that Trump enjoys broad immunity from criminal prosecution over his attempts to overturn the 2020 election results.
In the aftermath of the 2020 election, Trump and his allies filed over 60 lawsuits attempting to overturn the results, frequently citing false claims of widespread voter fraud. This election cycle has witnessed a surge in litigation, with 196 challenges across 40 states as tracked by Democracy Docket, a website founded by Democratic election lawyer Marc Elias.
The Republican National Committee participates in numerous lawsuits as part of a significant “election integrity” initiative aimed at ensuring proper vote counting and preventing illegal voting. However, courts have consistently rebuffed this initiative. Democrats view this litigation effort as a prelude to Republicans contesting a potential Trump loss again.
Legal experts like attorney Jason Torchinsky express skepticism about the Supreme Court’s willingness to determine the election outcome unless the results are extraordinarily close. The justices have previously intervened in a presidential election, as they did in 2000 when they halted a Florida vote recount that effectively awarded the presidency to George W. Bush over Al Gore.
Currently, the avenues for Supreme Court intervention appear limited. Unlike in 2020, when the justices overturned certain federal court decisions aimed at facilitating voting during the COVID pandemic, such developments have been rare this time. State courts have also swiftly addressed numerous lawsuits leading up to the election, particularly in key battlegrounds like Georgia and Pennsylvania.
Congress has further reduced the potential for post-election chaos by passing the bipartisan Electoral Count Reform Act, which revamped the certification process for presidential election outcomes to prevent a repeat of the January 6, 2021, Capitol riot.
Both Trump and Harris plan to use “whatever legal tools are available to them,” noted Wendy Weiser, a voting rights expert at New York University’s Brennan Center for Justice. However, Weiser cautioned that the scenarios inviting Supreme Court involvement often appear implausible or far-fetched.
That said, certain circumstances could still prompt the Supreme Court to step in, particularly if the margin of victory is narrow. Becker highlighted ongoing issues in Pennsylvania that the state Supreme Court has yet to resolve, which could become significant if a post-election environment reveals a razor-thin margin.
The Pennsylvania mail-in ballot case gained more importance as Republicans sought the Supreme Court’s emergency intervention to block a state Supreme Court ruling allowing the counting of provisional ballots cast by voters who mistakenly filled out their mail-in ballots. However, the justices declined that request on Friday evening.
In 2020, Republicans objected to the Pennsylvania court’s decision permitting mail-in ballots postmarked by Election Day and received up to three days later. The justices chose not to block that decision and ultimately declined to hear the case months after the election.
Weiser expressed concern about the Supreme Court potentially stepping in to determine the election outcome. Instead, she worries about the impact of ongoing litigation on public perception. “The biggest play involves trying to delegitimize an outcome in the eyes of the public—enough so that they refuse to accept the result,” Weiser said.
