Welcome back, Deadline: Legal Newsletter readers. The Supreme Court on Friday night rejected a Republican bid from Pennsylvania to block certain ballots from counting in the swing state. But on Wednesday, the court backed the GOP in approving a voter purge in Virginia. We'll have to see which court shows up next week and throughout any election litigation to come.
In the Pennsylvania case, Republicans wanted the justices to block the counting of provisional ballots by voters whose mail ballots are rejected for technical flaws. The high court turned away the challenge, with Justice Samuel Alito issuing an accompanying statement that said the case raised an issue of "considerable importance." But in the statement joined by fellow GOP appointees Clarence Thomas and Neil Gorsuch, he said that procedural issues in the appeal meant that they couldn't grant Republicans relief even if they wanted to.
In the Virginia case, the Roberts Court sided with Republicans over dissent from the three Democratic appointees. And what was the majority's rationale for approving the state's voter purge in apparent violation of federal law? It gave no explanation for the ruling that struck U.S. citizens from the rolls, despite the state's claim that it sought to remove noncitizens. While the order applies to a state that isn't considered one of the main battlegrounds, it sets a troubling precedent for any voting litigation to come.
The justices rejected Robert F. Kennedy Jr.'s bids to get off the ballot in swing states Wisconsin and Michigan. The court previously rejected Kennedy's quest to get on New York's ballot, after the former independent candidate suspended his campaign in August and endorsed Trump. Successfully opposing Kennedy's appeal, Michigan lawyers pointed out that he failed to explain "how he can be irreparably injured by the very thing he asked to be granted him in New York."
That didn't stop Gorsuch from dissenting. The Trump-appointed justice said he was persuaded by opinions from Trump-appointed appeals court judges who said Kennedy raised a crucial issue: "Does forcing a person onto the ballot compel his speech in violation of the First Amendment?" But the court didn't deem it important enough to take up.
Cornel West also lost at the high court this week. The spoiler candidate wanted an order posted at Pennsylvania polling sites telling voters they can write him in for president. But Alito, who covers emergency orders from that region, rejected West's longshot bid on his own, effectively deeming it unworthy of referral to the full court.
The justices return to the bench Monday to kick off the two-week November argument session with a handful of hearings unrelated to the election. While every appeal can matter, we'll be keeping a closer eye on any more orders in voting cases, both leading up to and after Election Day. The question I posed at the start of the term – "Will the Republican-appointed majority find a way to put the Republican nominee back in office?" – remains open.
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