Courts could see a wave of election lawsuits, but experts say the bar to change the outcome is high

WASHINGTON — When the Supreme Court stepped into the 2000 presidential race, Republican George W. Bush and Democrat Al Gore were separated by a razor-thin margin. The court’s decision to halt the recount of votes in Florida effectively delivered the election to Bush and shaped the nation’s future.

The case is perhaps the most notable modern example of the judicial branch having a direct involvement after an election, but it’s not the only time judges have been drawn into postelection disputes.

America's court system has no formal role in the election process, and judges generally try not to get involved because they don't want to be seen as interfering or shaping a partisan outcome, said Paul Schiff Berman, a professor at George Washington University Law School.

But election disputes have increasingly landed in court since Bush v. Gore, Berman said.

This year could be especially contentious, coming after more than 60 unsuccessful lawsuits where then-President Donald Trump falsely claimed that he lost the 2020 election to Democrat Joe Biden due to massive voter fraud. Dozens of lawsuits have been filed this year, mostly concerning relatively small matters.

“We have a long history in this country of a democratic process that operates in a nonpartisan manner with regard to vote counting that does not require constant court intervention, but that norm has been shattered in the same way that many of our democratic norms have been shattered since 2016,” Berman said.

Court cases could start election night over whether to keep polling places open if they experienced trouble affecting access during the day.

After the votes are all cast, lawsuits over the vote count could be next. That could involve claims about the counting of certain ballots, allegations against the election officials overseeing the count, disputes over the methodology or challenges to the certification of the vote totals in each state.

There could be lawsuits over recent updates to the Electoral Count Act, which governs the certification of the presidential contest. The revisions were passed by Congress in 2022 in response to Trump’s effort to overturn the 2020 results by pressuring his vice president, Mike Pence, over congressional certification of the states' electors.

How much a lawsuit might affect the outcome of an election depends on how many votes are in dispute and what kind of a solution a judge might order if a problem is found. In some cases, “It isn’t clear what the remedy would be if these suits were successful,” said Steven Schneebaum, an attorney and adjunct professor at Johns Hopkins University.

If the 2024 race is very close, court rulings could affect the outcome, especially in the swing states that will be key to the election. But for a lawsuit to affect the race, the election would have to be so close that the court would have to determine how people voted or one side would have to prove a major, fundamental problem with how it was run, said Rick Hasen, an elections expert and law professor at the University of California, Los Angeles.

“The standard to overturn an election is extremely high, for good reason,” he said. “We want elections to be decided by voters, not courts.”

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