When the Supreme Court recently resolved an election dispute in Missouri that featured dueling court orders and sanctions against state officials, it highlighted the ongoing flurry of litigation that threatens to engulf the midterm elections in confusion and unpredictability.
The barrage of high-stakes election cases hitting the nation’s highest court is above historical norms, especially for a midterm election, legal experts say, and the uncertainty around the rules less than two months before Election Day could undermine voters’ confidence in the electoral system.
“So much of our confidence in our elections depends on it being kind of boring and predictable,” said Lori Ringhand, a professor at the University of Georgia and an election law expert. “When it looks like the rules are constantly changing, that isn’t good for anyone … or at least anyone who wants to bolster rather than undercut confidence in our elections.”
The high court has yet to rule in a case involving President Donald Trump’s plan to impose sweeping restrictions on mail-in voting for November’s elections, which experts say could result in errors, undercounted ballots and last-minute scrambling by election officials. Also pending before the justices is the legality of the Trump administration’s use of Social Security data to help state officials identify noncitizens on voter rolls.
Rick Hasen, a professor of law at UCLA and an expert on election law, said the legal fights over election procedures and last-minute challenges have “got to be unsettling for voters” and “potentially damaging for officials carrying out elections.”
“I’ve never seen anything like the mail-in ballot litigation, where there is a threat to make such a drastic change to an election in the middle of an election,” Hasen said. “That’s an order of magnitude different than anything else that is out there now or that we have seen.”
Trump’s proposal, ostensibly aimed at preventing noncitizens from voting, would require states to provide voter data to the U.S. Postal Service, which would deliver only ballots that meet certain criteria.
Election-related cases have been increasing for decades, but three factors have sharply accelerated the trend this year: a Supreme Court decision weakening the 1965 Voting Rights Act, which prompted Southern states to quickly draw new, sometimes contested electoral maps; Trump’s pressure on GOP-led states to redraw their own maps, and Democrats’ efforts to respond in kind; and Trump’s aggressive push to introduce new voting rules.
The high court’s Voting Rights Act decision in April prompted aftershocks in places like Louisiana and Alabama. The Supreme Court intervened in follow-up cases in both states through its emergency docket; in Louisiana, thousands of voters had already cast absentee ballots.
The justices also stepped into the redistricting fights between Republican- and Democratic-controlled states, allowing Texas to redraw its maps to help Republicans and California to do the same for Democrats. In March, the court’s conservatives sided with a New York Republican in a separate redistricting battle.
In June, the Supreme Court ruled that states could count mail-in ballots received up to five days after Election Day. This month, the justices sided with Republicans in deciding that political parties were entitled to favorable rates on TV ads from broadcasters.
This past Thursday, the high court blocked Missouri from using a new congressional map that was drawn to help Republicans pick up a seat. That ruling may not end Missouri’s confusion, however, since it forces the state to use a different map for the general election than it did for its August primary.
That is an extraordinary volume of election-related cases playing out as the election approaches.
Such involvement by the federal courts was not always the norm. Many legal scholars cite the Supreme Court case 26 years ago that decided the 2000 presidential election in favor of Republican George W. Bush as a crucial dividing line.
“This is what we’ve seen since Bush v. Gore, which is an escalating number of court cases with each election,” said Nate Persily, a professor at Stanford Law School. “Since the 2000 election, because it was razor-thin, the battle over the rules has become a natural part of the election itself.”
In Bush v. Gore, a 5-4 conservative majority ordered Florida to halt a recount that was then underway, in effect cementing Bush’s narrow lead over Democrat Al Gore in the state and assuring his ascent to the White House. The majority said the recount violated equal protection principles, while the dissenting justices warned that the decision would enshrine a public view of the court as politically biased.
In the quarter-century since, election litigation has tripled, according to Hasen’s research. The yearly average of 94 election-related cases before 2000 shot up to 283 in the years following, according to Hasen’s study, which found that the 2020 presidential election set the record for the highest number of cases in a single year.
A separate study by the University of Wisconsin Law School found 543 cases tied to the 2020 election, many of which were lawsuits filed by Trump and his supporters alleging election fraud, virtually all of which they lost. The Supreme Court declined to take up a dispute between Trump and Democrat Joe Biden, who won the election.
Lawsuits have been less frequent around midterm elections than presidential races. But this may be the year that changes.
Some critics blame the Supreme Court for failing to clarify the rules of the road just weeks before a pivotal vote. Others blame today’s candidates for running to the courthouse on the flimsiest pretexts, leaving it to judges and justices to try to impose order.
“One reason we’re seeing more litigation is that political actors are increasingly pushing the envelope and pursuing actions ahead of elections that could be highly disruptive,” said Robert Yablon, co-director of the State Democracy Research Initiative at the University of Wisconsin at Madison. “In such instances, it can often be valuable for courts to step in, impose a check and try to restore a semblance of order.”
Trump has justified his slew of election-related changes by saying they are necessary to stem voting fraud, although there is little evidence that such fraud is a significant factor in the United States. Under the president’s mail-in voting order, the Postal Service is seeking to have state and local officials submit lists of voters — possibly multiple times a day — through an online portal that has not yet been made public.
That plan would also require thousands of jurisdictions to get approval for the design of their ballot envelopes. It is unclear how long those approvals would take, and election officials say there is not enough time to redesign them and print new ones if they’re rejected.
Hasen said these potential problems may be a feature, not a bug, in Trump’s plan. “A lot of this is calculated by the Trump administration to sow chaos,” he said.
The White House rejected that assertion.
“The real ‘chaos’ in our elections is sowed by extreme Democrats who refuse to enact basic commonsense measures to protect the integrity of our elections,” Lauren Bis, a White House spokeswoman, said in an email. “Any confusion as to implementation of the USPS’s commonsense rule has been caused by radical district court injunctions limiting implementation of the rule, which is designed to ensure that only Americans decide federal elections.”
Michael Dickerson, director of the Board of Elections in Mecklenberg County, North Carolina, noted that election administrators have had to navigate late-breaking changes in the past, including ahead of the 2024 presidential election.
“We’ve learned to approach everything cautiously but make sure we hit our deadlines,” Dickerson said. He added that his office has already mailed out — and gotten back — ballots for the midterm elections.
Still, a group of Republican secretaries of state recently urged the Supreme Court to block Trump’s mail-in plan, citing the “incontestable facts … that late changes breed confusion, that confusion keeps eligible voters from voting, and that a chaotic election erodes confidence in the result.”
Hasen said a chaotic election could allow Trump or his administration to contest results or seek to delegitimize an election in which Democrats are widely expected to do well. That is particularly dangerous at a time when faith in institutions is low, he added.
Steve Hobbs (D), Washington state’s secretary of state, said the flurry of court rulings and announced changes have led to genuine uncertainty among voters. “You get a phone call or text, you’re getting milk at the grocery store,” he said, and people will ask, “‘Hey, are we still going to have vote by mail? Is that gone?’”
The confusion and chaos is “far beyond what I expected,” Hobbs said. The contradictory court rulings and announcements create significantly more work for election administrators, he added, “on top of the normal stuff you already do for elections.”
The Supreme Court in August allowed Trump’s executive order to go forward on a temporary basis, ruling that Democratic-led states had brought their challenge too soon.
Days later, though, a federal judge blocked Trump’s order, saying it was impossible for states to issue new envelopes in time for the elections. That action prompted the case currently pending before the Supreme Court.
Not all election experts criticize Trump’s moves. Don Palmer, a senior fellow for election integrity at the Heritage Foundation, said the administration’s proposals make sense and could increase voter confidence.
“What they are really doing is maximizing compliance with existing federal law,” said Palmer, a former election official in Florida and Virginia. “There’s a law on the books that noncitizens are prevented from voting. But I think many observers will say, ‘Are there teeth to that?’”
But some Supreme Court justices, particularly the liberals, have warned of “chaos” as the court becomes enmeshed in emergency litigation late in the campaign, especially at a time when voters begin sending in their ballots weeks before Election Day.
When the court’s conservatives initially declined to block Trump’s mail-in voting order, Justice Ketanji Brown Jackson did not mince words.
“This ruling … needlessly injects chaos and uncertainty into the upcoming midterm elections,” she wrote in her dissent. “It also lets another shoe drop in the Kafkaesque nightmare that our precedents have been steadily creating for certain plaintiffs who seek to bring election-related challenges.”
Justin Levitt, a law professor at Loyola Law School, said that in the face of shifting rules, voters should remember three simple guidelines: get voting information from local election officials, double-check your voter registration, and make a plan to vote.
So far, Levitt said, the rules have not changed dramatically, despite all the litigation.
“The airplane ride is real bumpy,” he said. “But it’s landing as scheduled at the promised time at the promised airport.”
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