It has been clear for a few months that Trump’s plan for the election was to win the election day count and then try to portray the mail-in ballots that get subsequently counted as illegitimate. Mike Pence made that very clear when he described the need to rush to confirm Amy Coney Barrett before the election, saying, “With all of the talk about universal, unsolicited mail-in ballots, where we have states around the country that are now extending the deadline, there is a possibility that election issues could be coming before the Supreme Court in the days after the election. And all the more reason why we should have nine justices on the Supreme Court to be able to resolve any issues that may arise”. Trump is counting on the courts that he has been largely able to pack over the last four years, especially the Supreme Court, to invalidate millions of mail-in ballots in order to retain the Presidency, or at least make a claim to hold it.

In general, the federal appellate courts have so far been willing to go along with Trump’s plans, often making the flimsiest of legal arguments to so. The notoriously bad Fifth Circuit ruled that Texas Governor Greg Abbott’s order to limit absentee ballot drop-boxes to just one per county was constitutional. According to the majority, the limitation “abridges no one’s right to vote” despite the fact that voters in some places in Harris County would have to drive over 45 miles to simply drop off their ballot or risk relying on the US Postal Service that the Trump administration has already sabotaged. The third option, of course, is to instead vote in person. Considering that Texas is already limiting absentee voting to those primarily over the age of 65 and the pandemic is raging again in Texas, the Court is asking those voters to literally risk their life to vote. The Court also apparently agreed with the Governor’s contention that additional drop-boxes would increase the chances for fraud despite providing no evidence to back that assertion up. But the courts have routinely accepted the argument that the mere fear of fraud is sufficient to block any expansion of voting rights and even restrict them.

The 5–3 Supreme Court decision blocking Wisconsin from counting mail-in ballots postmarked before the election but arrive within six days after the election is similarly filled with illogical arguments. Brett Kavanaugh, in his concurring majority opinion, cited three reasons for blocking such an extension. First, he claims that judges should not change the rules so close to an election; second, judges should not be making public health decisions; and third, deadlines are critical to ensuring faith in the elections. All three of these positions are dubious, at best. For voters who mailed their ballots yesterday, for example, Kavanaugh is the judge changing the rules, raising the possibility that their vote will now not count if the ballot takes the average ten-day period that first class mail now takes to be delivered. In addition, judges have routinely “changed the rules” during elections in order to ensure voters’ rights are protected. in virtually every election, judges order polling places to be kept open well beyond the official time the polls close in order to deal with long lines, technical issues at the polling place, or other extraneous factors. In the past, polling hours have also been extended due to extreme weather where people were advised to stay off the roads for their own safety, so it is hard to see why Kavanaugh would consider a public health event such as a raging, deadly pandemic as uniquely off-limits for judges.

In fact, the crux of Kavanaugh’s argument simply reprises President Trump’s claims that votes that are counted after election day are somehow illegitimate. Kavanaugh writes, “Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election. And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter”. Kavanaugh’s bad faith was further illustrated by his quoting a legal scholar to support his contention about “suspicions of impropriety” about late-counted ballots, but his citation was from a paper where the scholar was actually arguing to extend the deadline.

But those late-arriving ballots are legal votes so there is no “result” to “flip” until all legal ballots are counted. The western states that use all mail-in voting often take weeks to fully count all their ballots but those ballots are still valid and legal. As Justice Kagan pointed in her dissent, “Justice Kavanaugh alleges that ‘suspicions of impropriety’ will result if ‘absentee ballots flow in after election day and potentially flip the results of an election’. But there are no results to ‘flip’ until all valid votes are counted. And nothing could be more ‘suspicio[us]’ or ‘improp[er]’ than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is to disserve the electoral process”.

But far more pernicious than Kavanaugh’s risible rationales was his invocation of Bush v Gore as precedent in his decision. Bush v Gore was the unsigned opinion that handed the Presidency to G.W. Bush but, as Mark Joseph Stern writes, “few can likely explain the court’s justification for that holding, and for good reason: It doesn’t make any sense, and the Supreme Court has not invoked it since”. In fact, the ruling was so convoluted that “in an unprecedented move, the court declared…that lower courts should never invoke its made-up principle again. This disclaimer acknowledged that SCOTUS had never applied such strict scrutiny to ballot tabulation and never would again”. Of course, what we did learn in Bush v Gore was that there are only two election deadlines that count, the certification deadline for the state and, in the election for the president, the certification deadline for the Electoral College. In addition, Kavanaugh was a lawyer working for the Bush administration during the 2000 election recount and specifically argued that late-arriving ballots should be counted. All that makes Kavanaugh’s mythical claim about the need to announce a winner “election night, or as soon as possible thereafter” even more risible.

Worse, Kavanaugh actually cited a separate concurring minority opinion from Bush v Gore and misrepresented that as well. Kavanaugh writes, as “persuasively explained in Bush v. Gore, the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws”. But that opinion that Kavanaugh cited only had the support of three justices, hardly the “persuasive” precedent he implies. In fact that opinion declared that the Florida Supreme Court had usurped the power of the Florida legislature simply by even ordering a recount. As Stern again notes, the three justices’ position “constituted a breathtaking assault on state sovereignty. It is black letter law that state courts hold ultimate authority to determine the meaning of their own state’s statutes and constitution. And the Florida Supreme Court had simply provided its best interpretation of a ‘legal vote’ under Florida law…Federal judges had a constitutional obligation to accept that (eminently plausible) reading of the law.” Moreover, as Daniel Jacobson notes, the 14th Amendment and current Supreme Court law based on the McPherson v Blacker decision says that the right to vote depends on the laws and the constitutions of the the individual states. Kavanaugh is simply ignoring the latter part of that standard.

Incredibly, the theory that federal courts can override state courts’ interpretation of state laws may now become the standard. In Pennsylvania, the state Supreme Court ruled that absentee ballots postmarked before election day and received within three days after election day should still be counted. The Court relied on its interpretation of “free and equal” elections clause of the Pennsylvania Constitution when elections are effected by a natural disaster, which the Court believes the COVID-19 pandemic is. Republicans appealed this decision to the US Supreme Court which split 4–4 in its decision, allowing the Pennsylvania Supreme Court ruling to stand. Justice Roberts, the staunchest suppressor of voting rights, provided the fourth vote with the liberals that rejected the GOP appeal, showing that even he did not want to go so far as to overrule the state Supreme Court.

With the ascension of Amy Coney Barrett to the Supreme Court, Republicans have refiled their appeal in this case in the hopes that Barrett will be the fifth vote they need to overturn the Pennsylvania decision. Remarkably, the Republican appeal cites Bush v Gore on numerous occasions and makes the similar claim that the Pennsylvania Supreme Court usurped the authority of the Pennsylvania state legislature by effectively changing the existing election laws. As Stern again notes, if the Republican appeal succeeds, “the Supreme Court gets to be a Supreme Board of Elections that substitutes state courts’ interpretation of state law with its own subjective view of a legislature’s ‘intent’”.

There is a similar case coming out of North Carolina. There, a state statue already allows at minimum a three day period for accepting absentee ballots after election day. In addition, the statute allows the state Board of Elections to extend that period during a natural disaster. After a legal challenge the Board extended this year’s grace period to six days after the election. The federal Fourth Circuit upheld the Board’s decision by a 12–3 vote, but the three dissenters again pointed to the US Constitution which states that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof”. They claim that Board of Elections has usurped that power. As Stern again notes, “the U.S. Supreme Court has consistently read the word legislature to encompass other bodies that exercise ‘legislative power’”. More importantly, it seems clear that the Board of Elections is actually implementing the state statute as written rather than usurping the powers of the legislature. However, with the encouragement of the three dissenters, this case has also been appealed to the Supreme Court.

Other court decisions are even more inscrutable. The Supreme Court upheld a lower court injunction supporting the Alabama Secretary of State in prohibiting Alabama counties from offering curbside voting to accommodate those with disabilities as well as those who are concerned about entering enclosed spaces because of the pandemic. There is nothing in state law that prohibits curbside voting, the process has been used in prior elections in that state, and the use of curbside voting was entirely optional for any county that wished to use it. As the district judge, whose initial ruling allowing curbside voting was overturned, noted, “Curbside, or drive-up, voting is a form of in-person voting (which state law of course permits). The practice involves a voter who is present in person to sign the poll book, complete a ballot and give it a poll worker, who then inserts it into a tabulation machine”. The practice is no different than deciding to change a polling location, except in this case the polling location is moved outdoors.

In the midst of all this, the election is actually happening. As noted above, in Texas, absentee ballots may have been dropped off at drop-boxes that counties added before the courts ruled their could only be one box per county. Are those votes valid? In Florida, the state issued guidance that all ballot drop-boxes must be staffed by a human at all times. Are votes put in unstaffed boxes still valid? In Wisconsin, voters may have already mailed in their ballots with the legal expectation that they would still be counted if they arrived six days after the election. If those ballots don’t now arrive before the end of election day, they will not be counted. In South Carolina, the state decided not to appeal a federal judge’s decision to require a witness signature on their absentee ballot for the primaries. The same federal judge waived that requirement for the general election. This time, however, the state appealed that decision and the Fourth Circuit eventually denied that appeal. The Supreme Court, however, overruled those lower courts and reinstated the witness requirement. Even more disturbingly, three of of the justices even objected to counting the potentially 60,000 ballots that had been legally cast while the witness signature was not required. The three justices, Thomas, Alito, and Gorsuch, simply wanted those void those ballots cast legally at the time, a shocking and frightening disenfranchisement of legal voters.

A similar situation exists in Alabama where absentee ballots have been sent out in the state’s most populous county with instructions that are no longer valid because of recent court rulings. As in South Carolina, a federal judge waived the witness signature requirement on absentee ballots for voters in the high risk category for catching COVID-19. The absentee ballots sent out reflected that waiver and included a special form that voters could fill out to certify their medical condition that would allow the waiver. Now, however, the 11th Circuit Court of Appeals has reversed the judges order and reinstated the witness signature requirement. As in South Carolina, there may be thousands of votes that were legally cast without the witness signature at the time but will not probably not be counted.

With the courts creating chaos like this as votes are actually being cast, Brian Beutler raises the absolute nightmare scenario. Beutler worries that all this chaos will result in a state legislature simply saying its impossible to know which votes are valid and which aren’t and it is therefore impossible to determine who actually won the election in their state. That would leave the legislature with at least some cover to do what is allowed by the US Constitution, namely appoint electors to the Electoral College to give their votes to Trump. Says Beutler, “With no way to distinguish ‘valid’ ballots from ones the Court has invalidated, the state Republicans…would have the real, actionable pretext they need to declare the election tainted, and seek to appoint electors who would loyally cast votes for Donald Trump”.

If you believe the polls, which is obviously a risky thing to do, it may be that Biden’s victory is so large that none of this will matter. Clearly, tens of millions of voters have decided to vote early in person in order to prevent some of the chaos the courts have produced. So the issue may be moot when it comes to the presidential election. But it’s more than likely the legal battles over contested ballots caused by the election chaos will decide some close Senate elections, perhaps even determining whether Democrats control the Senate or not. In addition, even if Democrats do win, Republicans can use the legal battles to prevent Democrats from effective control of the Senate for months. In 2008, Norm Coleman used his legal battles to prevent Al Franken from being seated in the US Senate until the end of June, 2009. It can reasonably be argued that the delay in Franken’s seating combined with Ted Kennedy’s sudden death is what prevented us from having a public option for health care.

The hypocrisy of the current Supreme Court is truly astounding. They continually cite the Purcell principle about not changing the rules so close to an election when they themselves are changing the rules. They profess to believe in the supremacy of the legislature in determining election rules but, earlier this year in a Wisconsin case, the Court itself added a postmark requirement that was nowhere in state law. And, as Steve Vladeck points out, the Court’s fealty to legislative intent disappears when it applies to them. There is nothing in the federal statute that expressly allows the Court to reach quorum by meeting remotely but that’s exactly what the Court has been doing since last spring.

The Supreme Court’s recent decisions are not just a suppression of voting rights. They represent a radical abrogation of state power by the federal judiciary in an all out assault on voting rights. As Stern again writes, “The Supreme Court consistently upholds states’ voter suppression schemes-stringent ID laws, extreme partisan gerrymandering, racist redistricting, limits on voting by mail-despite clear evidence of disenfranchisement. The court has rolled back long-standing federal protections for equal suffrage by dismantling the Voting Rights Act’s most important provision, spurring mass poll closures, voter purges, and cuts to early voting that disproportionately affect minority communities. SCOTUS did all this in the name of states’ rights, shielding states’ election laws from the overreaching arm of the federal government. These decisions rested on the principle that federal courts should defer to states’ judgments about how to run elections. But there is now a growing movement within the federal judiciary that would turn this principle into a one-way ratchet. Conservative judges have begun to argue that federal courts must stand down when states suppress voting rights-and intervene when states try to expand them. These judges claim a constitutional obligation to overrule a state’s own determination that voting should be easy, safe, and reliable during a pandemic”.

This effort is part of the broader Republican attempt to entrench minority power. In fact, the Court itself is representative of that minority power. As Stephen Wolf notes, with Barrett’s confirmation “a MAJORITY of the Supreme Court will be 5 GOP justices confirmed by senates where the GOP majorities were elected with fewer votes than Dems across all 100 seats. 3 of them by a president who lost the popular vote & 2 by one who lost it in his first term”. Reducing the power of this life-tenured minority will be one of the biggest challenges facing Democrats going forward.

Originally published at https://thesoundings.com on October 28, 2020.

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