Voting GIF by Pusheen

The Roberts Court loves infringing upon people's voting rights. If this Court has one fully coherent doctrine, it's that voting rights are bad. It's pretty much the one area where the Court has been pretty much entirely consistent.

Until now.

This week, the Supreme Court voted 4-4 on whether to review a case that gave Pennsylvania election officials a couple of days after the election to receive absentee ballots. A tie has the result of letting the lower court's decision stand, so the tie was a victory for voting rights for Pennsylvanians.

This might be the first time the Roberts Court has ever ruled in favor of voting rights — but actually, it spells BAD things for the future of voting rights and the upcoming election. Really? Dammit. Yes.


Here's the deal

The fact that SCOTUS isn't taking this case, Republican Party of Pennsylvania v. Boockvar, is absolutely a good thing for Pennsylvania voters. The Pennsylvania Supreme Court ruled that the state must count absentee votes that are received by November 6 at 5 p.m., as long as they're postmarked by Election Day. The state's highest court also ruled in favor of permitting ballot dropboxes.

It's not really shocking that the Pennsylvania Supreme Court ruled the way it did. State constitutions actually offer a lot more protection to voters than the federal Constitution — especially after the utter dismantling of voting rights that the Roberts Court has championed. While the US Constitution is shockingly quiet on voting rights, state constitutions explicitly codify and guarantee the right to vote.

Forty-nine of our fifty state constitutions affirmatively protect the right to vote, saying something like citizens "shall be entitled to vote" or "shall be qualified to vote." (Arizona is the outlier.) And about half of our state constitutions also contain a provision noting that elections must be "free," "free and open," or "free and equal." Because of this, state supreme courts have routinely held that their constitutions go further than the federal Constitution in protecting the right to vote. That's one of the reasons the Pennsylvania Supreme Court ruled the way that it did.

Pennsylvania is both a "shall be entitled to vote" state and a "free and equal" state — and the state supreme court relied on those provisions in its ruling.

It's true that this ruling is good for Democrats — because of Donald Trump's constant mouth diarrhea and the fact that he is a cult leader, more Democrats than Republicans are expected to vote by mail this year. But it's also just good for democracy. As far as I'm concerned, anyone who is fighting to refuse to count votes is basically always the asshole. And SOMEHOW, the undemocratic asshole just always seems to be the GOP. It's almost like all of Republicans' blathering about voter fraud and election security is actually just racist, xenophobic bullshit.

Making sure mail-in and absentee ballots are counted is more important than ever this year. Because of the pandemic, more voters are expected to cast mail-in votes this year than ever before. In Pennsylvania, this is the first year that all voters can choose to vote by mail, without needing a reason. According to the Pennsylvania Department of State, nearly two million people have already requested mail-in ballots — and that number is growing by the day. And in Pennsylvania and Wisconsin, election officials can't even begin counting ballots until Election Day, which means we probably won't get results from those states for several days, regardless of whether they count ballots that arrive the week of the election.

Republicans, naturally, were the ones seeking an emergency stay of the Pennsylvania Supreme Court's order. Because who wants to make sure people's votes are counted, am I right?!

Democratic Pennsylvania Secretary of State Kathy Boockvar, the state Democratic Party, and local election boards filed suit after tens of thousands of votes were thrown out during the state's primary. Republicans, on the other hand, would just prefer less democracy.

The GOP is represented by Trump's favorite law firm, Jones Day. Their lawyers made a ridiculous argument that states can't count ballots after Election Day, because federal law denotes November 3 as the day of the election. This is, of course, fucking absurd, and nothing in federal law or the US Constitution prohibits states from counting absentee ballots postmarked by Election Day that arrive a couple of days late. As Joseph Cosgrove, one of the lawyers on the case, told Courthouse News,

Election boards have been required under federal law to accept ballots from uniformed and overseas voters which are received after Election Day, and have done so for decades.

Truly, the idea that the United States Supreme Court should jump into this case is batshit insane. And yet, all of the Republicans on the Court, save Chief Justice John Roberts, are happy and willing to go there. Roberts sided with the Court's remaining liberal bloc to stop this case from being heard. So basically, the only conservative SCOTUS justice who is at all committed to not using his power to destroy our entire democratic system is John Roberts.

And listen, I am no fan of John Roberts. Although he's willing to throw us a bone every once in a while, he is at heart a conservative Republican. That's why W gave him this job. But I will say this: John Roberts cares about the integrity of the Court.

Unfortunately, the Court we are about to have could give two fucks about legitimacy, integrity, or the democratic process. And there's nothing the Chief Justice will be able to do to stop it.

The fact that Justices Thomas, Alito, Gorsuch, and Kegstand were willing to take this case says a lot of things that should fucking terrify everyone who cares about having a legitimate election. And they're about to get their fifth vote ...

Here's why this is all BAD, VERY BAD

The US Supreme Court normally does NOT weigh in on cases like this one. The Pennsylvania Supreme Court based its decision on the Pennsylvania Constitution, not the US Constitution. And SCOTUS doesn't get to decide what the Pennsylvania Constitution means — its job is to interpret the US Constitution and federal laws, not state laws. That's what state courts are for.

Remember when we had a Black Democratic president and Republicans constantly screamed about "FEDERALISM!!1!" and "STATES' RIGHTS!!!!!"? Yeah, that all flew out the window the second their cult leader was anointed. But it's actually an important thing for our country that the fucking Supreme Court respects our constitutional set-up.

It's unsurprising that the ratfuckers simply noted their dissent without including any written dissents. It's truly difficult to find any federal hook that would justify their votes in this case. Because the state court's decision was entirely based on state law, the only way SCOTUS can justify interfering is if it violates the federal Constitution or federal law. And there is absolutely nothing illegal or unconstitutional about a state deciding when and how to count ballots. That's actually kind of the entire point of leaving the mechanics of elections up to state and local authorities — it makes it harder for an authoritarian federal government to fix the results. But it is 2020, so alas, here we are.

The vote didn't just show us that four sitting members of the Court are down for some ratfucking — it also shows us that they are willing to unilaterally create a new system where the Supreme Court just decides that it will create all of the election rules, state laws and constitutions be damned. And you can bet that this Court, which just looooooooves it some ratfucking, will not give a flying fuck about protecting the right to vote. So enjoy your voting rights now, while you still can!

Thanks to this case, we know that the Supreme Court already has four votes to ratfuck our democracy. And it's almost certain that the number is about to reach the magic number of five, when the undemocratic far-Right gains another seat on the Supreme Court next week

Make no mistake — fixing this election is a big part of the reason why Republicans are forcing Amy Boney Carrot's nomination through before the election. Naturally, Barrett has refused to commit to recusing herself from cases involving the election of the fascist piece of shit who is about to give her the biggest promotion possible just days before the election takes place.

This is all part of their plan. And it's a giant pile of fucked up, undemocratic, authoritarian wildebeest dung. (Although wildebeests travel widely and the GOP is obviously entrenched.)

So that's fucking awful

It's all bad. The damage that these motherfuckers are willing to do to our democratic process and fundamental constitutional rights in order to elect a fascist is fucking nuts. It's terrifying and horrifying and some days I feel like I'm watching the end of our republic happening in real time.

But there is one thing we can do to ensure the Supreme Court doesn't fuck this up for us: VOTE.

Vote in such large numbers that there's nothing they can do.

Get so many people to vote for Joe Biden and Kamala Harris that the courts can't ratfuck it, because it's just not even close.

We can still win this thing. But we have to do the work.

VOTE!

VOTE NOW!

Please vote?

Voting Elizabeth Warren GIF


[ Order / Courthouse News ]

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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.
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