October 30, 2020

SCOTUS Election Rulings

On Wednesday, The Supreme Court left in place state court extensions allowing mail-in ballots to be counted if they arrive later in North Carolina (extended from Nov. 6 to Nov. 12) and Pennsylvania (extended from Nov. 3 to Nov. 6). Newly installed Justice Amy Coney Barrett did not take part in either decision. SCOTUSblog

On Monday, the Court rejected a similar extension ordered by a federal judge in Wisconsin. In a concurring opinion, Chief Justice Roberts noted that unlike in Pennsylvania, in this case a federal judge, not a state one, had ordered the extension. SCOTUSblog

See past issues

From the Left

The left supports the deadline extensions.

Chief Justice John G. Roberts Jr. deserves credit for trying to find a principled way through so far. Over the past few weeks, the court has generally deferred to state officials in major voting cases… But the next steps the court takes may define it for a generation…

“The court left open the possibility that the justices could revisit the issue of late-arriving ballots after the vote, potentially invalidating the very ballots the justices permitted to be collected before the election. It would be a shame if the court tossed out ballots from Americans whose only mistake was trusting the U.S. Postal Service to deliver them in a reasonable amount of time, especially after they had thought that the Supreme Court had said late-arriving ballots would be counted. It would be a calamity if doing so flipped the election to the candidate who in fact did not win over a majority of voters.”
Editorial Board, Washington Post

“Three justices believe state legislatures wield near-absolute authority over election rules — and state courts cannot intervene to ensure that those rules don’t infringe on voting rights as outlined in state constitutions. If Amy Coney Barrett and Brett M. Kavanaugh subscribe to this — and Kavanaugh already has, in a related decision in Wisconsin — five justices could invalidate untold numbers of late-arriving ballots after the election.”
Greg Sargent, Washington Post

“There is a strong presumption that courts shouldn’t intervene to change the rules in election disputes right before the voting or in the middle of it. The rules shouldn’t be changed in the middle of the game. So it would be an outrage if Barrett voted to overturn the Pennsylvania State Supreme Court’s ruling and stop the counting of votes received after Election Day…

We don’t know for sure where Barrett would come down on the issue that divides Roberts from Kavanaugh, namely whether the U.S. Supreme Court may overturn a state supreme court’s own interpretation of state election law when that court took a decision counter to the state legislature… It’s conceivable that Barrett could recuse herself… Barrett could perhaps say that because she wasn’t on the court when the Pennsylvania case was decided, she won’t participate in reconsidering it. Her real motive, of course, would be to avoid permanent ignominy as the justice who was named to the court just a couple of weeks before handing a victory to the president who appointed her.”
Noah Feldman, Bloomberg

“On Monday evening, ominously, Justice Brett Kavanaugh repeatedly endorsed Rehnquist’s Bush v. Gore concurrence, claiming that the Supreme Court should feel free to second-guess state court interpretations of state election law whenever presidential elections are at issue… [But] this part of Bush v. Gore has already been squarely rejected by a landmark 2015 case, Arizona Legislature v. Arizona Independent Redistricting Commission…

“Allowing federal courts to muck around with state election laws is dangerous and destabilizing. States generally set uniform rules for federal and state elections; giving federal courts latitude to topple state rules, but only for federal elections, eviscerates in-state uniformity. Does it really make sense that your ballot in Pennsylvania will count for state elections but not the presidency — or federal House or Senate races, for that matter — because it arrives on Nov. 5?”
Akhil Reed Amar, Vikram David Amar and Neal Kumar Katyal, New York Times

“Kavanaugh worked on the Bush v. Gore recount of 2000, so he might possibly recall an intensely damaging misstep by Al Gore’s side. On November 15, Gore’s lawyer Mark Herron sent a memo to Democratic recount observers advising them to challenge late-arriving ballots. George W. Bush’s side instantly recognized a lethal political error. Many thousands of these late-arriving ballots were military ballots. Bush’s recount chief, James Baker, said, ‘Here we have our—these brave young men and women serving us overseas. And the postmark on their ballot is one day late. And you’re going to deny him the right to vote?’…

“Now, 20 years later, Kavanaugh is staking for Republicans the same untenable position. More than half of U.S. military voters are likely to vote by mail, and the strict deadline position advanced by Kavanaugh in the throes of a pandemic may disenfranchise many serving away from home.”
David Frum, The Atlantic

From the Right

The right is critical of the deadline extensions.

The right is critical of the deadline extensions.

“The justices declined to intervene in the Pennsylvania election case despite the patent lawlessness of the rewrite by that state’s highest court — which could enable fraud by requiring non-postmarked ballots to be counted for three days after the November 3 election is supposed to be over. Nor will the Supreme Court intervene in a North Carolina election-law case that is nearly as egregious: one in which an unaccountable bureaucracy, the State Board of Elections, has presumed to rewrite state law by extending until nine days after the election the deadline for receiving ballots (although those ballots must be postmarked by or before November 3)…

“The Constitution vests in state legislatures the power to determine voting rules; courts are not given that power; nor may courts rationalize altering valid state election laws by claiming that complications caused by the coronavirus pandemic require it, because our system vests the responsibility for dealing with those complications in elected officials accountable to the people whose lives are affected; plus, the Supreme Court’s jurisprudence admonishes that election rules may not be changed when the election is imminent; and it would be impossible to hold elections without deadlines, so deadlines set by state law must be respected as long as they are reasonable.”
Andrew C. McCarthy, National Review

Some note that “The North Carolina ruling isn’t as bad as it may look on the surface, and not nearly as odious as the Pennsylvania decision. Despite stretching the deadline out to November 12, any ballots received during that period will still have to be clearly postmarked by election day, November 3rd. All this rule is really doing is allowing for the possibility that the Post Office might not be able to deliver some ballots as quickly as usual due to anticipated high volumes of mail.”
Jazz Shaw, Hot Air

Regarding the Wisconsin case, “As Neil Gorsuch put it in his own concurrence, joined by Kavanaugh, ‘The Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules.’ It’s not that state rules can’t change. The disposition defended by Kavanaugh provides plenty of leeway for states to change how they are handling their elections in light of the pandemic, and he has no objection to such adjustments. It’s simply that state legislatures should make them…

“In her dissent sharply taking issue with Kavanaugh, Justice Elena Kagan implicitly gives away the store. She makes policy arguments for why an extension of Wisconsin’s deadline is preferable. Even if this is correct, if she wants laxer election rules in Wisconsin, Kagan should move to the Badger State and run for state legislator.”
Rich Lowry, Politico

“Badger State law says absentee ballots must arrive by Election Day. Justices Neil Gorsuch and Brett Kavanaugh wrote opinions that should help educate lower-court judges who think they can rewrite state election law on election eve. Justice Kavanaugh cited the Court’s precedents that ‘recognize a basic tenet of election law: When an election is close at hand, the rules of the road should be clear and settled.’…

“Justice Gorsuch added that Wisconsin has gone to extraordinary lengths to take account of Covid, including sending all registered voters an absentee-ballot application and return envelope in the summer that they have been able to return since September. If Wisconsin’s Nov. 3 deadline can be thrown out due to Covid and despite the many avenues for casting a vote, Justice Gorsuch wrote, then ‘what about the identical deadlines in 30 other States?’ Why bump the deadline six days and not 10 days?… Clear rules that everyone knows upfront mean fewer openings for political mischief that requires Supreme Court intervention a la Bush v. Gore in 2000.”
Editorial Board, Wall Street Journal

“The left claims that failing to count late ballots amounts to ‘disenfranchisement.’ But you’d have to be living on the moon not to know by now to vote or mail in a ballot early to avoid Election Day crowds. That’s why an astounding 70 million people have already voted. The voter-disenfranchisement argument is akin to insisting the plane must wait for people who get to the airport late.”
Betsy McCaughey, New York Post

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