With exactly a week until Election Day 2020, Trump’s nominee for the U.S. Supreme Court, Amy Coney Barrett, has now been installed, taking the seat previously held by Justice Ruth Bader Ginsburg.
As voters nationwide line up hours in advance to cast a ballot or request a mail-in ballot in an unprecedented electoral uprising, Barrett’s confirmation by the U.S. Senate has tipped the scales of ‘justice,’ cementing a 6-3 conservative majority High Court. The Republican Party and Trump now possess a solid advantage, which could have an immediate impact on the hundreds of voting rights lawsuits still floating in legal limbo across the country.
A majority of those cases have filed by the GOP and Trump campaign in an attempt to suppress and minimize early voting and mail-in voting—both of which are seen as favoring Democratic turnout. Others have been filed by the Democratic Party and the Biden campaign in attempts to expand voting rights during the second round of coronavirus.
As reported previously, it’s a clear possibility that this presidential election will not be officially decided by end of the evening on Nov. 3, and both the Trump and Biden camps have prepared for what might be an inevitable showdown before the U.S. Supreme Court—echoing Election Day 2000.
In a possible preview of what we can expect, a case out of Wisconsin is instructive.
In a 5-3 order on Monday, Oct. 26, the Supreme Court gave Wisconsin Republicans a win by refusing to reinstate a lower court order that allowed mailed ballots to be counted if they were received up to six days after the election as long as they were mailed by Nov. 3. A federal appeals court had already put a temporary hold on the order pending intervention by the High Court.
The three liberal justices dissented from the order, which was issued mere moments before the Senate began voting on Barrett’s Supreme Court nomination.
Despite joining the court’s Democratic-named justices last week to preserve a Pennsylvania state court order extending the absentee ballot deadline, Chief Justice John Roberts voted the other way, siding with conservative justices, in the Wisconsin case.
“Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin,” wrote Roberts, referring to a similar deadline-related case.
Democrats had argued in favor of extending the deadline, citing the challenges posed by the pandemic, in particular, especially the massive flood of mailed absentee ballots that the U.S. Postal Service is experiencing as voters seek ways to avoid coronavirus exposure. Wisconsin is one of the nation’s hot sports for coronavirus, with hospitals now treating a record number of infected patients.
Republicans argued against the extension, saying voters have “opportunities to cast their ballots by the close of polls on Election Day and that the rules should not be changed so close to the election.”
While we have seen the High Court stay mum, or say extraordinarily little at most, about the reasoning behind their votes in expedited cases, Monday saw four justices pen their opinions—a total of 35 pages laying out their competing rationales.
“As the COVID pandemic rages, the Court has failed to adequately protect the Nation’s voters,” wrote Justice Elena Kagan in a dissent highlighting that the state allowed the six-day extension for primary voting in April and that roughly 80,000 ballots were received after the day of the primary election.
Trump Justice Neil Gorsuch recognized the complications the coronavirus pandemic adds to voting but upheld the court’s action.
“No one doubts that conducting a national election amid a pandemic poses serious challenges. But none of that means individual judges may improvise with their own election rules in place of those the people’s representatives have adopted,” Gorsuch wrote. He was joined in this opinion by Brett Kavanagh, another Trump-named justice.
Here’s a look at some of the other court battles taking place in key battleground states:
PENNSYLVANIA: The Pennsylvania GOP is now asking the U.S. Supreme Court to intervene and speedily rule on the party’s lawsuit to block state-county elections boards from counting mailed-in ballots received up to three days following the Nov. 3 election—similar to the matter in the Wisconsin case.
The GOP’s appeal on Friday, Oct. 23, came only four days after the High Court justices delivered a 4-4 split decision putting a hold on the vote count extensions—leaving the three extra days in place as ruled by the Pennsylvania Supreme Court.
Without an expedited consideration, the Republican Party’s right to appeal and the U.S. Supreme Court’s “power to resolve the important constitutional and legal questions presented for this election—will be irrevocably lost,” the party’s court filing said.
The GOP’s appeal may end up before the Supreme Court again, this time with Barrett on the bench.
Pennsylvania’s attorney general, Democrat Josh Shapiro, suggested that reversing the state Supreme Court’s order would go against the “Purcell principle,” that courts should not change election rules just before an election to avoid confusing voters and creating problems for election administrators.
“Changing the rules late in the fourth quarter causes confusion and disenfranchises voters,” Shapiro said in a statement. “That’s what the Purcell Principle is designed to guard against. The Pennsylvania Supreme Court was within their bounds to allow the three-day extension and it should stay intact.”
NORTH CAROLINA: In an identical move, N.C.’s Republican legislative leaders, and the Trump campaign, have also petitioned the U.S. Supreme Court to reverse course and maintain the state’s original shorter deadline for accepting late-arriving absentee ballots.
On Oct. 22, the state GOP filed its appeal arguing the longer deadline, extended after early-voting began, will result in “unequal treatment of voters and dilute the value of ballots cast before the rule was changed,”
They also said the elections board “usurped the legislators’ authority to set elections rules” by altering the deadline specified in state law. The Trump campaign filed a separate but similar appeal asking the High Court to force the key battleground state to revert to stricter rules for fixing absentee ballot errors.
Last week, a federal judge considering the deadline and other absentee ballot procedures, U.S. District Judge William Osteen, ruled that absentee ballots that arrive without a witness signature can’t be counted. In such instances, he prompted the state to inform voters that they would have to start a new ballot over and have it witnessed again, but Osteen ruled that more minor errors could be fixed by simply submitting a signed affidavit.
North Carolina Attorney General Josh Stein, a Democrat whose office represents the state elections board in court, accused Republicans of trying to make it harder to vote.
“If voters comply with the statute and mail in their ballots on or before Election Day, they should not be penalized by slow mail delivery in a pandemic. The Republicans have lost this argument at every turn because they are trying to stop votes from being counted,” he said in a statement Thursday.
INDIANA: On Monday, Oct. 26, a federal appeals court upheld a law specific to Indiana which prohibits voters from asking county election judges to extend voting hours beyond the 6 p.m. closing time due to any Election Day troubles that may surface.
The 7th Circuit Court of Appeals ruling throws out a federal judge’s decision last month against the law passed in 2019 by Indiana’s Republican-dominated Legislature prohibiting anyone other than a county election board, which oversee voting matters, from requesting court orders to extend voting hours.
The lawsuit was filed in July by voting rights organization Common Cause Indiana and objected to the state law’s provisions allowing judges to keep voting sites open past closing time only ‘if’ they were shut down, blocking them from considering situations such as broken equipment, insufficient ballots, or long wait times as a reason to expand voting time on Election Day.
The three-judge appeals court panel ruled that the law “does not place any burden on Indiana residents’ constitutional right to cast a ballot.”
“The district court rested its conclusion that the amendments burdened the right to vote on the possibility that some imaginable circumstance exists in which those provisions might affect voters,” the ruling said. “But (legal precedent) does not license such narrow second-guessing of legislative decision making.”
The fate of all these cases and more may now rest on the tie-breaking vote of the newest member of the Supreme Court—Trump’s third justice, Amy Coney Barrett.
THE COURTS AND THE ELECTIONS:
Coup by court: Republicans prepare legal challenges that echo 2000 fight
Wisconsin GOP loses legal bid to block absentee ballots
GOP voter suppression efforts pop up in Texas, Indiana, North Carolina courts
N.C. mail-in ballots case mixed ruling: Witness requirement remains, error fixes allowed
ELECTION 2020: Everything you need to know to vote in your state
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