How John Roberts—Yes, John Roberts—Might Decide Who Won the Election

In other words, here is a high court conservative majority—which, by the way, includes three lawyers who helped develop and argue George W. Bush’s case in Bush v. Gore—announcing that it can put its thumb on the scale in a future election, without defining the standard for that action in advance. This would be a heavy ask even for a court with a sterling reputation. From this court, so thoroughly outsourced to the Federalist Society, GOP operatives, and billionaire oligarchs, it’s truly terrifying.

How could this play out this fall? One distressing clue arrived Wednesday afternoon, less than a week before Election Day, when the court, apparently along party lines, allowed Virginia to purge some 1,600 voters—even those known to be U.S. citizens—under the guise of preventing noncitizen voting. Virginia’s action, a clear violation of the National Voter Registration Act, not only sows last-minute chaos there but blesses similar suppression and chicanery elsewhere.

So let’s say the 2024 election comes down to Wisconsin. Long lines in Milwaukee lead the state Supreme Court to keep polls open several additional hours to ensure that every vote is counted. Or maybe a deluged U.S. Postal Service has a backlog of ballots postmarked on or before Election Day but has not been able to deliver them all. Then, just as it did in 2020, the state Supreme Court provides additional time for any ballot sent prior to the deadline to arrive, for which Democrats have pushed. Republicans duly appeal both state court rulings to the U.S. Supreme Court, which would then decide whether potentially thousands of likely Democratic votes would count in a state where margins in 2016 and 2020 have been razor-thin. The Supreme Court rules that the counting must be halted.