The relatively low number of Supreme Court cases the justices have agreed to take on so far this term has led legal observers to speculate that the high court may be leaving space to handle election-related disputes, should any arise. Former federal prosecutor Joyce Vance, for example, said in a recent post on her blog Civil Divorce that the Supreme Court is “saving room” on its docket in case they need to handle any lawsuits brought by former President Donald Trump.

However, other legal experts and election watchers disagree, speaking out about the significant improbability of the Supreme Court’s wading into any pre- or post-election litigation.

Why the Supreme Court is unlikely to recreate Bush v. Gore

Henry Olsen, an author, analyst, and senior fellow at the Ethics and Public Policy Center, told the Washington Examiner that there is a “slim” likelihood that the high court would wade into any election-related challenges, noting that would require multiple variables to come together.

“I think the likelihood is very slim, because what you have to do is, first of all, is have a very close election in some case, or in some flights of fancy, a theory that Republicans will illegally refuse to certify a vote,” he said.

Olsen also said that there would need to be a valid legal question at issue in order for the Supreme Court to consider taking an election case.

“That is again, an open question, and it has to be a federal question, not a state question,” Olsen said.

The Supreme Court led by Chief Justice John Roberts, an appointee of former President George W. Bush, has been dogged for years by critics on the Left for its 6-3 Republican-appointed majority, formed with the help of Trump and then-Senate Majority Leader Mitch McConnell (R-KY).

But Olsen poured cold water on the notion that the Roberts court would pull out any stops to help Trump in the event that the election results in a decisive loss for the former president, saying “it’s pretty clear that there is not a 6-3 lock-step majority.”

“It’s pretty clear that Justice Roberts does not want the court to be moving in a direction where it is settling contentious issues that it doesn’t have to settle. You saw that as far back as the Obamacare case, when he was the vote that basically found a compromise that invalidated some provisions, but not the whole law,” Olsen said.

Yet some legal experts maintain that there are still ways the justices could get thrust into a difficult position, such as what happened in the 2000 Bush v. Gore case, where the so-called hanging chads election between Bush and Democratic candidate Al Gore was handled by a Supreme Court ruling that Florida’s recount should be stopped on the Constitution’s equal protection grounds, handing the victory to Bush, despite Gore winning the popular vote.

Vance, who pointed out that the Supreme Court has only taken roughly 40 cases for this term, hinged her theory about the justices’ slim docket on the potential of a “round two of the presidential immunity appeal [Trump] hopes will prevent him from facing a jury in Washington, D.C.”

While the Supreme Court in July did side in a 6-3 decision with Trump’s argument that former presidents are entitled to some immunity from prosecution, special counsel Jack Smith has hardly slowed down since the case resumed pretrial activity in U.S. District Judge Tanya Chutkan’s courtroom.

And more importantly, whether Trump decides to make another attempt to appeal to the Supreme Court over his D.C. criminal case does not mean the Supreme Court will get dragged into a Bush v. Gore scenario.

If Trump wins the 2024 election against Vice President Kamala Harris, political analysts and legal experts largely agree that Trump may call on the Justice Department to dismiss the two federal cases he faces. Those include a classified documents case that was dismissed by U.S. District Judge Aileen Cannon, which could still be resurrected on appeal.

How some experts say the Supreme Court could still get entangled in 2024 drama

Other legal experts, such as University of Chicago law professor Aziz Huq, predicted in a Politico magazine report that there are “three paths” the justices could take to involve themselves in a future 2024 election challenge.

The first path Huq floated relates to a 2023 case, Moore v. Harper, in which the Supreme Court held in part that justices could involve themselves in state court rulings if state judges “exceeded the bounds of ordinary judicial review.” 

Huq said a second path could open once votes have been cast, floating as an example a scenario where a “MAGA-backed Georgia state election board refuses to certify a Harris victory.” A third path, and one Huq considered most unlikely, is a scenario where the joint session of Congress convenes to clear the Electoral College tally, which he suggested is quite a stretch.

While the Georgia State Board of Elections has made at least three last-minute changes to election rules, a recent courtroom trial over the contested rules prompted a judge to gain clarification from attorneys representing the board: that Georgia’s hard Nov. 12 deadline for certification will not be disrupted.

In an email to the Washington Examiner, University of California, Los Angeles professor Richard Hasen said he has a “different view than Huq.”

Why the election legal environment isn’t as volatile as 2020

Hasen published a report in Slate Thursday declaring that the greatest chance for a Supreme Court intervention in pre-election litigation “fizzled last week” when the Pennsylvania Supreme Court declined to intervene in a dispute on the treatment of mail-in ballots.

“Had the Pennsylvania Supreme Court agreed to take the case, this would have raised a thorny question left unanswered by the U.S. Supreme Court’s 2023 decision in Moore v. Harper,” Hasen said.

Both Olsen and Hasen said that there is always a risk for a Bush v. Gore repeat.

However, both experts agreed that the 2020 election was marred by challenges because of the array of rule changes that occurred because of the pandemic, which is no longer an issue for this election.

And with COVID-19 came a deluge of absentee ballot requests. Around 46% of voters voted absentee or by mail in 2020, according to Pew Research data. So far, about 52 million U.S. residents have requested some form of absentee ballots as of Oct. 10, which represents 26% of registered voters. Some states, such as California, send mail-in ballots to every registered voter, while evidence suggests fewer people could vote absentee in the Nov. 5 election.

Hasen said if the election boils down to a few thousands votes or fewer in crucial swing states, “then we’ll expect both sides to litigate as hard as they can to try to secure a favorable outcome.”

“Indeed, one could imagine that if it all comes down to Pennsylvania and there is a pile of those timely but undated or misdated ballots, someone will sue on behalf of those voters in federal court, arguing that the ballots must be counted to protect the right to equal protection guaranteed by the 14th Amendment,” Hasen wrote, and Olsen similarly agreed that he expects lawsuits in the state after ballots are cast.

But Hasen, who typically aligns with Democrats who push more permissive voting options, poured cold water on the notion that a conservative majority on the Supreme Court would side with any election officials holding up the certification process.

“In such a case, judicial involvement would be to protect the will of the voters, not to serve as an end run around them,” Hasen wrote.

“This is a Court that I do not think wants to decide the election,” Olsen said, noting, “They will if they have to.”

“But the idea that there’s this conspiracy from the lowest precinct worker to the highest Supreme Court justice to thwart democracy is incorrect,” he added.