If SCOTUS Doesn't Steal This Election, They've Got Plans For The Next One
First, the bad news: Conservative justices control the Supreme Court, and they just banked two decisions that might let them tip the scale for Donald Trump in an election where the margins are very, very close.
And now the good news: It probably won't happen. And you have the power to prevent it happening if you get your vote in on time.
So, while we don't trust these bastards as far as we can throw 'em, we're not going to panic and assume that the fix is in. Because it isn't.
Yesterday, the Supreme Court refused to issue an emergency modification of a Pennsylvania Supreme Court order to count ballots that are postmarked on or before Election Day and received within three days of the election due to coronavirus-related delays.
Similarly, it refused to intercede on an emergency basis to prevent a ballot extension in North Carolina. The backstory there is slightly more complicated. After the state legislature extended the deadline by three days for absentee ballots postmarked on or before November 3, a consortium of voters led by the North Carolina Alliance for Retired Americans sued in state court to get the deadline pushed out further, and a state court approved a negotiated settlement between the plaintiffs and the state registrar to accept ballots for an additional six days, up until November 12.
Republican heads of both houses of the North Carolina legislature sued in federal court to prevent the extension being put into effect, but lost at the Fourth Circuit. And the Supreme Court says it's now too close to the election to intervene, although it may take up the issue later.
Because the Court refused to expedite review in the Pennsylvania case, Republican Party of Pennsylvania v. Boockvar, and the North Carolina case, Moore v. Circosta, the absentee ballot extensions will go into effect and some number of late arriving votes will be counted. Which leaves us with both a short-term and a long-term problem.
In a few days, North Carolina and Pennsylvania will begin tabulating votes. If the margin is razor-thin, the Court has left itself an opening to swoop in and hear the case after the election (i.e., on a non-emergency basis), invalidating the ballots that arrived during the court-ordered extension. This could, theoretically, swing the election if there are ten thousand late ballots and Trump and Biden are just a few thousand votes apart in either of these states. Which is horrible and anti-democratic, and also highly unlikely.
Biden is ahead by five points in the FiveThirtyEight average for Pennsylvania, and two points in North Carolina. More importantly, Donald Trump telegraphs a punch worse than a drunk who's been parked at the end of the bar since lunchtime Tuesday. He told us he was going to ratfuck the post office to slow down our ballots. He told us he was going to try to purge the voter rolls. He told us he was going to try to get as many Democratic ballots tossed as possible based on stupid signature match shit. He told us he was going to challenge ballots that arrived late.
And because he's such an obnoxious loudmouth, 70 million Americans have already voted, and the entire Democratic establishment is shouting from the rooftops that it is now too late to mail in your ballot so it has to be hand-delivered. Put simply, Donald Trump is a one-man get-out-the-vote machine — for Democrats. So the number of ballots that arrive late is likely to be too low to be the deciding factor. Yes, it could happen. But it probably won't.
Longer-term, however, we have a serious problem that's going to get worse when Justice Barrett starts hearing cases. Because Justices Thomas, Alito, Gorsuch, and Kavanaugh have already signaled that they intend to start invalidating state court decisions on electoral law in ways which will help entrench Republicans in power.
To wit, it is axiomatic that federal courts will defer to state courts on interpretation of state law. But last week Justice Kavanaugh pulled a shiny new theory out of his, umm, keg stand. What if the Constitution grants the power to determine the rules for local elections to state legislatures, and thus it is unlegal for state courts to interfere with their rule-making authority?
Here's Kavanaugh in Monday's DNC v. Wisconsin State Legislature decision invalidating a federal court's ruling that extended the absentee ballot deadline.
[U]nder the U.S. Constitution, the state courts do not have a blank check to rewrite state election laws for federal elections. Article II expressly provides that the rules for Presidential elections are established by the States "in such Manner as the Legislature thereof may direct." The text of Article II means that "the clearly expressed intent of the legislature must prevail" and that a state court may not depart from the state election code enacted by the legislature. Bush v. Gore, 531 U. S. 98, 120 (2000) (Rehnquist, C. J., concurring). [...] In a Presidential election, in other words, a state court's "significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question." Bush v. Gore, 531 U. S., at 113 (Rehnquist, C. J., concurring). As Chief Justice Rehnquist explained in Bush v. Gore, the important federal judicial role in reviewing state-court decisions about state law in a federal Presidential election "does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures."
As Jamie explained, this reference to Rehnquist's non-precedential concurrence in Bush v. Gore, is klaxon signaling that the Court intends to start wading in on matters of state election law. And while Chief Justice Roberts is trying to slice the onion thinly enough to differentiate between state and federal court electoral decisions, the other conservative justices have no such qualms.
Yesterday, Justices Gorsuch, Alito, and Thomas decried the seizure of state legislative power by state judges in the North Carolina and Pennsylvania cases. The Pennsylvania Supreme Court extended the deadline based on its interpretation of Pennsylvania law. And yet, here's Justice Alito pretending that the Constitution bars those very judges from rendering decisions on state law when elections are implicated.
The parties before us all acknowledge that, under the Federal Constitution, only the state "Legislature" and "Congress" may prescribe "[t]he Times, Places and Manner of holding Elections." Art. I, §4, cl. 1. Everyone agrees, too, that the North Carolina Constitution expressly vests all legislative power in the General Assembly, not the Board or anyone else. N. C. Const., Art. II, §1; cf. N. C. Const., Art. I, §6. So we need not go rifling through state law to understand the Board's permissible role in (re)writing election laws. All we need to know about its authority to override state election laws is plain from the Federal and State Constitutions.
They are telling you very plainly that once Justice Barrett is sworn in, they're going to invalidate state court decisions on gerrymandering and ballot access and felon disenfranchisement and everything else that ensures free and fair elections in this country. They will ensure that Republican state legislatures in places like Wisconsin, North Carolina, and Pennsylvania, where districts are drawn to ensure that the GOP maintains a stranglehold on power despite receiving far fewer votes than Democrats, can control elections without interference from federal or state judges.
So, yes, there could be a problem next week if the margins are very, very close. But there absolutely will be a problem next year when pro-democracy plaintiffs sue to stop Republican legislatures from drawing unfair congressional districts and restricting access to the ballot.
This week, we concentrate on winning. Next year, we fix the courts.
FIVE MORE DAYS.
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.