Amy Coney Barrett
Credit: Wikimedia Commons

Two weeks before Election Day, the U.S. Supreme Court, by a tie vote, affirmed a pro-voting rights decision by the Pennsylvania Supreme Court. Drawing on the state’s constitution, the Pennsylvania court ordered the state to count mail ballots mailed by November 3 and received within three days after that date. The state’s constitution protects voting rights far more strongly than the U.S. Constitution, the majority said, and thus required adjustments for the chaotic combination of a pandemic and a sluggish if not sabotaged postal system.

That ruling was a small victory both for the right to vote and for the authority of state courts. That victory may be short-lived. In an order issued Monday, the Supreme Court ruled, 5-3, against allowing the same kind of extended deadline in Wisconsin. The difference? The lower-court order that the Supreme Court crushed was issued by a federal, not a state court. That was apparently dispositive to Chief Justice John Roberts, who had voted against staying the Pennsylvania court.

The defeat for Wisconsin voters is likely final. But the victory for Pennsylvanians is not.

Last Friday, the Republican Party and its leaders were back at the Supreme Court, asking the Court to examine the ballot-deadline and strike it down. There are two reasons for concern about Pennsylvania’s second bite at the apple. The first is that (as I wrote last week), the Pennsylvania Republicans’ arguments are both outlandish and dangerous. But, on the evidence of the Wisconsin case, that hasn’t stopped at least one Justice, Brett Kavanaugh, from embracing them. His concurrence in Democratic National Committee v. Wisconsin State Legislature endorses the Republicans’ far-right notion that state courts, interpreting state statutes in light of state constitutions, are nonetheless subject to being overruled by federal courts who disagree with their reading of state law. Indeed, the argument is more extreme than that. State legislatures (of necessity run by partisan majorities) have sole authority over all aspects of federal elections, the argument runs. State legislatures pass the statutes, but state courts have no jurisdiction to interpret them or examine them by the light of their state constitutions.

Kavanaugh’s opinion is drawn from the opinion of the late Chief Justice William Rehnquist in Bush v. Gore. The re-emergence of that cursed travesty is particularly ominous in October 2020. That’s because, unless the election on Nov. 3  produces a Democratic landslide, Republican lawyers will ask federal courts to shut down the counting of ballots they deem illegitimate. The stage is set for Bush v. Gore: The Sequel.

More ominously still, the 4-4 Court that allowed the late-ballot deadline in Pennsylvania is no more. On Monday night, in a ceremony with all the elegance and solemnity of a late-night wedding at the Little Neon Chapel in Las Vegas, Amy Coney Barrett was sworn in an associate justice of the Supreme Court, filling the ninth seat, left empty by the death of Ruth Bader Ginsburg.

As the Court has changed, so has the Pennsylvania case. Earlier this month, the Republican plaintiffs were asking the Supreme Court to step into the case before hearing it. That is, they wanted an emergency stay of the state court order even before the Justices could consider whether to hear the case. Now they are back asking the Court to hear it and to decide it without argument—which could mean a decision this week. But if the Court refuses that, they’ve asked for an order to “segregate” ballots that arrive by Election Day from those that arrive after it.

That, in effect, would freeze the count in Pennsylvania until the new nine-justice court can decide the issue—perhaps after emergency Bush v. Gore-style oral arguments. And if that happens, it is possible that the entire nationwide presidential election will turn on Pennsylvania’s 20 electoral votes. The Justices will decide the case knowing full well that, for the second time in 20 years, they will be picking the president of their choice.

Chief Justice John Roberts (no friend of voting rights) had voted to allow the Pennsylvania extension to take effect. However, he voted with the majority to shut down the Wisconsin ballot extension. He wrote separately to make clear his commitment to the authority of state courts. The Wisconsin appeal was from an order of a federal district court, he noted. However, “the Pennsylvania applications implicated the authority of state courts to apply their own constitutions,” while “this case involves federal intrusion on state lawmaking processes.” That question involves “[d]ifferent bodies of law and different precedents.”

In other words, Roberts’s vote may be at least up for grabs.

But, John Roberts, meet 2020. There are nine justices now. The Chief’s days as the “swing Justice” are past, and all eyes are on Justice Barrett. She would not promise to recuse from cases involving the man by whose side she stood as recently as Monday night.

Former Fourth Circuit Judge J. Michael Luttig—as hard-right a conservative jurist as I have ever met—warned in The Washington Post on October 17 that the Supreme Court’s own caselaw suggested that her recusal was required. But recusal in the abstract is one thing. If the White House hangs in the balance, she may remember that she refused to promise anything of the sort during her confirmation.

In the past four weeks, many people wondered how it is that Barrett, claiming virtue, has been willing to wade into this tawdry banana-republic charade; we may learn the truth about Barrett’s character much sooner than expected.

Garrett Epps

Follow Garrett on Twitter @ProfEpps. Garrett Epps is legal affairs editor of the Washington Monthly. He has taught constitutional law at American University, the University of Baltimore, Boston College, Duke, and the University of Oregon. He is the author of American Epic: Reading the U.S. Constitution.