The Supreme Court’s Latest and Very Ominous Voting Case

Because of a split decision, a Pennsylvania ruling that allowed more time for mail-in ballots narrowly survives. When Amy Coney Barrett is seated, voters will lose. Big time.

Democrats haven’t scored a lot of voting-rights victories in front of the Supreme Court this election cycle. But they got some good news Monday when the Justices refused to block a Pennsylvania state-court decision allowing ballots mailed by election day to be counted even if they arrive at state offices three days later.

But the victory in Republican Party v. Boockvar was simply a tie. The lower court’s order was “affirmed by an equally divided court.” Four Justices—Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh—found merit in the Republican Party’s challenge to expanded voting.

Pennsylvania Republicans advanced three arguments against the expanded-voting decision. One is frivolous; any of the three would open the door to Supreme Court meddling in state election laws during voting and vote-counting.

And the additional piece of bad news is that Amy Coney Barrett is bearing down on the Court like a supertanker at sea—slow, steady and unstoppable. She is a nominee who seemed unaware that voter intimidation is illegal, or even that it exists. In front of the Senate Judiciary Committee, she dismissed this persistent American problem as “a hypothetical set of facts.”

Barrett’s vote is exactly what Donald Trump and the Republican Party want and expect. “I think I’m counting on [the Court] to look at the ballots, definitely,” the president said in the September 30 debate—meaning mail-in ballots of the precise kind at issue in the Pennsylvania case. Trump would prefer that none of them be counted. Some have called for Barrett to recuse herself from such a case; I will believe that when I see it.

What is the “emergency” that prompted Pennsylvania Republicans’ appeal?  The Pennsylvania Supreme Court had ordered that local election officials count mail ballots cast by Election Day and received within three days after the election. That order applied even if the Postal Service had not (as it often does not) marked the prepaid envelope with a “legible” dated postmark. Had Chief Justice John Roberts not sided with the three moderate liberals, the Court would have blocked the Pennsylvania order. The consequence:  A huge number of Pennsylvanians—surely in the thousands—would have been disfranchised by the happenstance of postal delivery.

The emergency appeal was from an order of a state supreme court, deciding a matter of state law under the state’s own constitution. State supreme court interpretations of state law are supposed to be pretty much off-limits to the U.S. Supreme Court—unless they directly conflict with federal law or the U.S. Constitution. And the “conflict” in this case seems to be manufactured out of vote-fraud hysteria and a relatively novel far-right constitutional theory.

The Republican parties’ application warned that the state court’s order is “an open invitation to voters to cast their ballots after Election Day, thereby injecting chaos” into “an orderly and secure schedule of clear, bright-line deadlines.”

Here’s a slightly different view, offered by Pennsylvania’s Democratic Attorney General: “[A]n unscrupulous voter would have to wait until after Election Day, commit a third-degree felony by lying on the Voter’s Declaration [of the date the vote was being cast], and bribe a postal worker not to postmark the envelope.” Leave aside what could motivate such conduct; to throw an election, this bit of gymnastics would have to be repeated thousands of times.

Last year, the Republican-controlled legislature in Harrisburg and Democratic Governor Tom Wolf, amended state law to allow any citizen who wished to vote by mail to do so (“no-excuse mail-in voting”). A voter can request a mail-in ballot until a week before election day. The law changed the deadline when mail ballots must be received. Previously it had been the Friday before election day; now it is 8 p.m. on Election Day itself.

Then came the pandemic of 2020 and the rise of Donald Trump’s appointee, Postmaster General Louis DeJoy. On July 29,  the Postal Service warned Pennsylvania Secretary of State that the woes afflicting Postal Service meant that “there is a significant risk” that the USPS would not be able to get ballots to election officials on time, even if the voter had requested and filled it out well before the deadlines.

This warning came on top of the COVID pandemic, which has been (so far correctly) expected to spark a massive upsurge in mail voting. In response to the USPS letter, Pennsylvania Democrats asked state courts to order the Democratic Secretary of State, Kathy Boockvar, to count all ballots received within a week after Election Day. She agreed that an extension was needed—but asked the state supreme court to order only a three-day one. It did.

The state supreme court’s majority based its ruling on the Pennsylvania Constitution, Article I § 5: “Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” That provision, first adopted in 1776, is a literal legacy of the American Revolution. There’s nothing like it in the U.S. Constitution and there is no federal caselaw that applies to it. As recently as 2018, the Pennsylvania supreme court stated that cases under this dictum are decided by “entirely separate jurisprudential considerations” than federal election cases.

Rushing to the Supreme Court, Pennsylvania Republicans made three arguments. First, they said, federal law specifies the first Tuesday after the first Monday in November as election day. Allowing ballots to arrive late would violate those statutes.

This Republican argument is absurd and would open up a rat’s nest. Remember that voters must cast their ballots on or before election day under the Pennsylvania court’s ruling and sign a sworn statement to that effect. So, is it the late arrival that threatens chaos? How can that be? At least six other states require a count of ballots mailed by election day but received after it. Pennsylvania itself counts ballots mailed by active-duty military personnel if received within seven days of election day. In fact, under the Republican theory, all early ballots and absentee ballots might be a violation of the election-day statutes.

The second Republican argument is that,  under the U.S. Constitution, presidential electors are to be selected “in such Manner as the Legislature thereof may direct.” That means, they argued, that the legislature can do whatever it wants, and state courts cannot review its decisions.

This argument is an emerging tenet of hard-right constitutional theory. In 2015, the Republican legislature in Arizona challenged a voter-adopted non-partisan redistricting commission, arguing nobody but the partisan legislature can regulate elections. They lost—but only 5-4, with Chief Justice Roberts writing the primary dissent. If anything threatens “chaos and the potential for gamesmanship,” it would be the adoption of this rule. That’s because, around the country,  many well-established state election rules (even, in some cases, the secret ballot itself) come from the text of state constitutions, and thus, by the logic of this new reading, might be open to challenge.

The third argument Republicans made in the Pennsylvania case is that under the so-called “Purcell rule,” the state court changed election procedures too close to election day. But until now, that “rule” has been applied only to changes ordered by lower federal courts. It’s quite a step to extend it to state courts as well; that might produce a flood of new suits.

(Since this article originally appeared, the Court apparently, by a vote of 5 to 3, followed the old version of the “Purcell rule.” That only restricts federal courts that try to make federal elections easier because of federal statutes and the federal Constitution. In this new ruling, which was issued after the article was published, the Supreme Court blocked a federal district court decision that interpreted the Americans with Disability Act to allow state clerks in Alabama to offer “curbside voting” to immunocompromised and disabled voters. Can’t have that, can we? And if five Justices think that a meddling district judge made it too easy to vote in Alabama–home of the Edmund Pettus Bridge–imagine what a new, Barrett-enhanced majority has in store for other judges who try to enforce constitutional rights.)

Any tribunal in which Chief Justice Roberts is a swing vote is already far to the right;  Barrett’s seating will likely send the Court over the edge.  The immediate result of her arrival may be a set of decisions that, by a strange, indeed odd or even bizarre coincidence, advantage Donald Trump–or even, Bush v. Gore style, hand him the White House a second time after yet another election he lost.

This article was updated on October 22 to take account of a new voting rights ruling from the Supreme Court.

 

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Garrett Epps

Garret Epps is the Legal Affairs Editor of the Washington Monthly and a professor of law emeritus at the University of Baltimore. He is the author of American Epic: Reading the U.S. Constitution and four other books about the Constitution.