The Supreme Court has been relatively quiet over the past week, but it may not stay that way long, given next week’s elections.
The Department of Justice has brought legal challenges against California, Alaska, and Washington state seeking to either block some ballots from being counted or block certification of results.
In California and Washington, the DOJ is seeking to keep thousands of voters’ ballots sequestered from the count, based on a claim by federal officials that those voters’ citizenship hasn’t been verified. The states deny such claims, noting that the system the government used to conduct such verifications is incomplete and error prone.
In Alaska, the Justice Department is asking a court to intervene if the Republican US Senate candidate Dan Sullivan loses, because there is another candidate who qualified for the ballot who is also named Dan Sullivan.
Steve Vladeck, in his newsletter One First, called the government’s Alaska challenge “one of the dumbest lawsuits by the federal government I’ve ever seen,” and I agree. Even given The New York Times’s report that Democrats in the state actively recruited candidates named Dan Sullivan, which is a terrible look, the lawsuit makes no sense. It seeks to block the certification of election results not because of an existing problem or irregularity, but if, and only if, the Republican candidate loses in a close race. There is no legal precedent of authority for a court to make such a ruling, but that hasn’t stopped the Justice Department from answering the call that came from the White House.
“I’m the one that said do it,” Trump told reporters in Florida about directing the lawsuit (a reminder that the Justice Department is supposed to operate independently, not at a president’s directive.)
But things haven’t been normal in the federal government for a while.
Lawsuits in California and Washington don’t seem to have any better shot of succeeding, given that lower courts have consistently held to the constitutional maxim that states have the authority to run elections, not the executive branch of the federal government. I highly doubt the Supreme Court will weigh in on these challenges at all, except possibly to underscore that very idea.
But I suspect the days leading up to and following the election will see many more challenges filed, and the Supreme Court may be called into the fray. Stay tuned — next week’s newsletter may be a doozy.
This is an excerpt from The Gavel, a newsletter about the Supreme Court from columnist Kimberly Atkins Stohr. Sign up to get The Gavel in your inbox every Wednesday evening.
Kimberly Atkins Stohr is a columnist for the Globe. She may be reached at kimberly.atkinsstohr@globe.com.