As a notably long Election Day has now come and gone, the prediction of many experts that there may be legal challenges to multiple aspects of the vote have already come true. So what better time to review how a legal challenge to the election can make its way to the highest court in the land?
The first and most critical thing to understand about the functioning of the Supreme Court addresses what is really a common public misconception. Most voters are unaware that the Supreme Court does not have to accept any case. The idea that a case winds its way through the system and when it arrives at the Supreme Court, the justices must hear the case is inaccurate and completely impractical.
So, cutting right to the chase, it is theoretically and practically possible that any election-related case that rapidly climbs through the court system and ends up seeking review by the Supreme Court could end there, with a refusal by the court to hear the case.
Generally, a case can reach the Supreme Court in one of three ways:
- On appeal from a federal circuit court
The most common way for a case to reach the Supreme Court is on appeal from a federal circuit court, which itself is a court of appeals. So one of the parties would be appealing the decision reached on appeal.
A party to a case who wants to appeal a decision of a federal circuit court files a petition to the Supreme Court for a writ of certiorari, or cert for short. “Certiorari” means “to inform” in Latin, which speaks to informing the Supreme Court that the party would like the circuit court's decision to be reviewed.
Here, the Supreme Court can decide to get involved by accepting the case, or it can simply decline to hear the case, which would make the decision of the federal appellate court a final one, not reviewable elsewhere.
While voting in this election is something that is carried out by the states, there are many federal regulations and laws that can be brought into play, including federal regulations on fair voting, voter suppression and an almost infinite number of angles that could be raised by claimants in a federal court.
- On appeal from a state supreme court.
A case can also make its way to the Supreme Court when one of the parties files an appeal from a state supreme court.
Each state has its own supreme court that is the final authority on state law. The vast majority of cases in any given state end there. Again, the Supreme Court is highly selective about any case it chooses to hear.
Could an election case come to the court from a state supreme court? Absolutely. In fact, this may be the most likely scenario
State supreme courts would be the ultimate decision makers in any vote-counting process scenario within the state. Imagine a case that challenges the propriety of vote-counting procedures and policies within a state begins to wind its way through state courts. Only in exigent or exceptional circumstances might the Supreme Court decide to review the decision of the state supreme court.
Again, it is worth noting that one way for the Supreme Court to ultimately decide a state voting issue would be not to take the case. The Supreme Court could reject the opportunity to review an ultimate decision of a state supreme court for a variety of reasons. The final result here would be that the decision of the state supreme court is the final law of the land and the state’s election count, procedures or processes would not get a federal review.
- Through the Court's original jurisdiction.
While this is by far the last common way for a case to reach the Supreme Court, there are election-related scenarios that could come into play in the next days and weeks.
The concept of original jurisdiction means that rather than a case coming to the court via other courts (state supreme court or federal appellate court) the case begins at the Supreme Court.
Practically, what are the chances that the Supreme Court would pass up a chance to hear an election-deciding case in 2020?
Don't fall into a trap here and think that because as of last week we now have a 6-3 conservative court that this means it is an activist court just waiting to get involved in deciding the election.
In fact, the smart money might bet on this Supreme Court doing everything possible not to become embroiled in an election-deciding issue.
Because they may have bigger fish to fry at a date in the not distant future. Just as ultimately making a decision in this election could define this court, the justices may choose to pass on involving themselves in this process to retain their impact and focus on other issues important to the nation, including re-examining landmark cases that have become the law of the land over decades.
Remembering that the Supreme Court is independent and has discretion to decide which cases it will hear, it is possible for it to decline hearing an election-related case. If it does choose to hear a case, it will take a vote of only four of the nine justices to do so. Depending on the exact nature of the case behind the writ of certiorari, the 6-3 conservative majority could prove a powerful aid or obstacle to getting those four required votes.
In a case where certiorari is declined, the decision of the lower court is final.
Aron Solomon is an adjunct professor at the Desautels Faculty of Management at McGill University and the senior digital strategist for NextLevel.com, a digital marketing firm for lawyers.