Supreme Court has created 3 paths to upending election: analysis

The Supreme Court has the power to step in to make huge decisions about the 2024 presidential election, wrote Aziz Huq for Politico Wednesday — and there are three key scenarios in which they could make a difference.

This comes as other experts sound the alarm that the Supreme Court might have teed up a situation in which it could enact a rerun of Bush v. Gore, making a decision that could singularly decide the outcome of the election.

"The Supreme Court has already shown it is unafraid to scramble electoral rules mere weeks before balloting starts: It recently accepted a Republican effort to require proof of citizenship for some Arizona ballots," wrote Huq. And it's easy to see where certain other pain points could require them to put a thumb on the scale.

The first lies in the court's 2023 Moore v. Harper decision, which ruled state courts can interpret election law — but gave federal courts a potential loophole to step in and override them if they “exceeded the bounds of ordinary judicial review.” At the time, the justices "never clarified what this vague language could entail. This means they have a free hand to second-guess state courts’ state law decisions when it comes to federal elections."

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Another issue lies in the way Congress recently updated the Electoral Count Act, which required states to submit electors on time, but didn't clarify what happens if states are out of compliance. "Can Congress still consider the slate?," asked Huq. "Or would the state’s Electoral College seats be eliminated from the final tally? The new law punts this question to the courts, and it creates a fast-track mechanism for certification-related disputes to reach the justices."

The third, and least likely but potentially most contentious scenario, is if a fifth of senators or representatives object to the electoral count based on a candidate's consistency with “the federal Constitution, federal law, and state law.”

Which means if Trump wins, Democrats could object based on his having taken part in an insurrection, another issue the courts would have to decide — similar to what they had to do when this was litigated at the state ballot access level in Colorado.

Ultimately, Huq concluded, the Supreme Court has put itself in an unenviable position, making itself "the necessary final word on almost all issues of national import. Its extravagant claims for authority — far beyond what the Framers anticipated — may finally come back to haunt it this fall."