As we lurch toward Election Day, this year’s bumper crop of litigation over voting rules has produced a late harvest of last-minute U.S. Supreme Court rulings. Because these are Court responses to “emergency” requests to set aside decisions by lower federal or state courts, they don’t follow the patterns we are used to seeing in regular Supreme Court decisions on the merits of cases. Sometimes the majority doesn’t explain itself, and sometimes it’s hard to tell what silent justices actually think.
But with five days until November 3, we have probably seen the last of the preelection Supreme Court activity and can make some judgments about what the Court has done and how it will affect actual voting.
The Roberts Court Thinks Federal Court Interventions Are Bad, State Court Interventions Are Good
Chief Justice John Roberts is famously concerned about maintaining the Supreme Court’s reputation for deferring political questions to the other two branches of government. Under his leadership, the Court has consistently (if not always by an actual majority) treated voting changes made by federal judges differently than those made by state judges or agencies, as I explained earlier this week in a case involving Wisconsin:
The actual holding in the Supreme Court’s order in Democratic National Committee v. Wisconsin State Legislature, as explained by Chief Justice John Roberts, was entirely predictable and not terribly controversial: relying on the same principle it applied in earlier cases involving the Wisconsin primary and general election rules in Alabama and South Carolina, the Court swept aside a district judge’s ruling liberalizing the deadline for mail-ballot receipt on grounds that federal courts should not intervene in state election-law disputes too close to the elections they govern, particularly when second-guessing state legislatures and state courts. Roberts’s terse opinion in the Wisconsin case explicitly distinguished it from a recent Pennsylvania case in which the Court declined (on a 4-4 tie vote) to overturn a State Supreme Court decision that similarly delayed mail-ballot receipt deadlines on grounds of slow mail delivery and COVID-19-prompted fears of voting in person.
The Supreme Court also overturned a federal judge’s ruling enabling curbside voting in Alabama, which had been banned by state election officials.
So for Roberts and the three remaining liberals on the Court (sometimes joined by another conservative or two), it’s who is changing the rules at the last minute that matters more than the rules changes themselves. Since I wrote the above paragraph, the Court has similarly rejected (by a 5-3 margin) a Republican Party and Trump-campaign effort to roll back a nine-day mail-ballot deadline extension (for ballots postmarked by November 3) in North Carolina that was made by the state elections board.
In other words, SCOTUS isn’t setting an overall template for how elections are conducted. It’s simply keeping federal courts out of state election-law decisions.
Sometimes this principle has made for some sloppy arrangements. On October 6, the Court predictably knocked down a federal district judge’s ruling invalidating South Carolina’s onerous requirement for a witness certification of mail ballots. Five justices (again led by Roberts) allowed the counting of mail ballots cast without witness certifications while the district judge’s ruling was in place, while three conservatives (Clarence Thomas, Samuel Alito, and Neil Gorsuch) would have forced these voters to start over.
Restive Conservatives Want to Make State Legislatures the Rule-Makers in Election Cases
While Roberts has managed to keep the Supreme Court from tampering with state election decisions as a general principle, Thomas, Alito, and especially Gorsuch (sometimes joined by Brett Kavanaugh) have taken exception to that principle with varying degrees of heat. The conservative “originalist” doctrine, which holds that state legislatures, with or without the concurrence of other state institutions, are sovereigns over all election-law decisions, reared its ugly head in the recent Wisconsin case in which Gorsuch and Kavanaugh strongly argued for SCOTUS’s obligation to overrule state courts and other entities in challenging the legislative language governing elections. Their views (which are certainly shared by Justice Thomas, likely shared by Justice Alito, and possibly shared by the new justice, Amy Coney Barrett) could have serious consequences if there is a contested election and state legislatures seek to assert unilateral power to determine the results. We’ll just have to wait and see.
Although Kavanaugh has made some alarming statements on the need for mail-ballot deadlines while quoting from a dangerous concurring opinion in the scandalous Bush v. Gore decision that decided the 2000 election, he has shown some willingness to make distinctions based on the facts of a case. He went along with Roberts in the abovementioned North Carolina case, probably on the grounds that the state legislature had delegated its election-scheduling powers to the election board whose extended deadlines were in question. He’s not a sure vote for vindicating state legislative sovereignty the way Gorsuch seems to be.
Barrett Has Stayed Out of the Line of Fire
In theory, the new justice could have begun fully participating in Supreme Court orders from the moment she was confirmed and sworn in on October 26. And indeed, Pennsylvania Republicans hoped she would break a Court deadlock in their favor when they contrived a second challenge to a State Supreme Court decision that SCOTUS had just rejected on a 4-4 tie vote. Instead, she stepped aside (as she did in the North Carolina case as well) on the grounds that she had not been fully briefed. So we don’t know yet what position she will take if there are postelection cases involving efforts to change or determine the election results.
The Supreme Court’s Impact Is Mixed on Mail-Ballot Deadlines
The Supreme Court did not, as noted above, set down any hard-and-fast rules on the mail-ballot deadlines that were the source of most of the emergency appeals they have addressed in the run-up to the 2020 general election. In North Carolina and Pennsylvania, ballots postmarked by Election Day will be counted if they meet extended deadlines for receipt set by the state election board in the former case and the State Supreme Court in the latter. In Wisconsin, the original Election Day deadline stayed in place. In Alabama and South Carolina, witness certification of mail ballots also stayed in place.
Partly because of Barrett’s accession to the Court and partly because different standards of review may apply in later cases not involving preelection “interference” with voting rules, some of the decisions just made could be reconsidered and reversed later. As a precautionary measure, Pennsylvania’s Democratic election officials have decided to count ballots received after Election Day separately in case they are challenged in the future. This step might avoid the possibility of all the results being thrown out. You cannot be too careful in this wild and consequential election cycle.