A Supreme Court order that had the effect of making voting easier during the pandemic should be very good news for voter advocates. But the four conservative dissents in the case are ringing loud alarm bells for election law experts.
It’s not just that Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh would have reinstated a tighter deadline for returning absentee ballots in Pennsylvania, had they had a fifth vote to let them do so.
It’s that the argument that Pennsylvania Republicans were making to the justices for why they should intervene in the first place is extreme and far-reaching. The Pennsylvania Supreme Court had previously ordered that absentee ballots received three days after the election be counted. The GOP asked the U.S. Supreme Court to reverse that order, on the rationale that the state court should not even have the ability to act the way it did in the case.
That Republicans were unsuccessful this time around does not mean that they will be unsuccessful going forward.
Chief Justice John Roberts joined the liberals to provide a 4-4 vote that deadlocked the case and defaulted to the state Supreme Court decision. Because the court voted 4-4, the status quo remains and for now the state Supreme Court ruling remains the controlling law.
When Judge Amy Coney Barrett likely joins the court later this month, similar disputes could play out more affirmatively in Republicans favor.
Here are five points on the order and what it means going forward:
Four SCOTUS Conservatives Signaled An Openness To Cutting Off A Key Avenue For Enforcing Voting Rights
The core of the Pennsylvania dispute that had been brought before the U.S. The Supreme Court is whether the Pennsylvania Supreme Court violated the U.S. Constitution in how it tweaked Pennsylvania’s voting rules to bring them in accordance with the state constitution.
Specifically, the Pennsylvania court said that — during this pandemic and the ongoing turmoil at the U.S. Postal Service — enforcement of the state’s Election Day absentee ballot receipt deadline violated the state constitution’s protections for the right to vote. The state court thus ordered that the deadline for receiving those ballots be extended until three days after the election.
Pennsylvania Republicans then turned to the U.S. Supreme Court for its intervention.
It’s unclear exactly why the four conservatives wanted to block the state Supreme Court’s ruling. They issued no dissenting opinion with the order, and the so-called shadow docket — as these kinds of emergency disputes are called — allows the justices to avoid explaining why they’re voting the way they are.
But given how extreme the central thrust of the Pennsylvania GOP’s arguments were, that four justices seemed to be persuaded by those arguments is a remarkable development.
It certainly sends a signal to Republicans across the country that they should try the U.S. Supreme Court again next time they disagree with how a state court is handling a voting rights dispute.
ACB Will Be A Swing Vote For Any Similar Legal Fights — Post-Election and Beyond
By the time Republicans do try such a gambit again, they might have a fifth vote in their pocket. Trump nominee Judge Amy Coney Barrett is set to be confirmed to the Supreme Court next week, just before the Nov. 3 election. President Trump and his allies in the Senate have been explicit that they believe Barrett should be put on the court by then to serve as the tie-breaker for any legal fights that emerge from the election.
It’s not a guarantee that Barrett would be a vote in their favor. But Barrett, who clerked for the late Justice Antonin Scalia, certainly seems to be cut from the cloth of the court’s far right wing, which has repeatedly broken from the institutionalist approach that at times drives Chief Justice Roberts to side with the court’s liberals.
The 4-4 tie in the Pennsylvania dispute notably leaves the door open for Republicans to try to challenge the ballot deadline again after the election, particularly in a scenario where Pennsylvania is the deciding state in the presidential race. They could, in theory, ask the U.S. Supreme Court to throw out any absentee ballots that came in after Election Day.
In their opposition to the latest GOP request, Democrats argued both that the U.S. Supreme Court should deny the request and do so in a way that brought some finality to the issue, so that Pennsylvanians would have certainty when they cast their ballots that they would be counted. The justices brought no such decisiveness with the 4-4 order Monday.
The Supreme Court’s general aversion towards disrupting voting rules while an election is underway cuts against the likelihood that Republicans would be more successful a second time around. Kavanaugh has joined Roberts in showing a wariness towards rejecting votes that had been already cast, as was seen in the recent order that reinstated South Carolina’s absentee ballot witness requirements but preserved that ballots cast without it.
But, bigger picture, it appears that with Barrett on the court, Republicans have a good shot at convincing five justices that it’s appropriate for them to intervene in situations where a state court has handed down a voting rights decision that goes against GOP interests.
State Courts Have Been Critical In Fighting Back Restrictive Election Laws
If vote suppressors are able to use the U.S. Supreme Court to hamstring state courts, it would represent a major win for them. With the Roberts Supreme Court showing increasing hostility to the right to vote, state courts have been a powerful tool for enforcing voting rights. The vast majority of state constitutions have some language affirming the right to vote, and in many places it’s been interpreted to provide far more protection to the franchise than the U.S. Constitution.
This has been especially true during the COVID-19 outbreak. While voter advocates have run into serious headwinds from federal appellate courts in their efforts to make pandemic voting safer, they have increasingly turned to state courts to relax voting rules.
This has also been the trend in non-pandemic legal fights over gerrymandering and over voter ID laws, where state constitutions have been used to defeat GOP election laws that federal courts would have likely permitted.
The argument that Pennsylvania Republicans were making in the ballot deadline dispute was that under the U.S. Constitution, state legislatures should have the final word on election rules and state courts should not play a role in determining whether those election rules comply with state constitutions. A U.S. Supreme Court that agreed with that argument would further embolden Republican state lawmakers to pass restrictive voting laws, as they would assume they would face no check from the courts.
PA Voters — For Now — Will Have More Time For Their Absentee Ballots To Make It Through The Mail
At least in the short term, the 4-4 decision has left in place the state Supreme Court decision that will be a boon to voters if it can sustain any future attacks. Some 100,000 ballots came in after election day during Pennsylvania’s June primary, according to testimony Secretary of State Kathy Boockvar provided in the state litigation, and most of those were received within the three days after the election, the period the state Supreme Court has sanctioned for still counting ballots.
But given the ambiguous future of that ruling — and particularly the open question about whether it will be left to stand after the election — voter advocates are still encouraging voters to submit their absentee ballots as early as possible if they’re voting by mail. Pennsylvania also offers drop boxes for voters to submit absentee ballots in-person and it operates so-called “satellite” early voting sites, where Pennsylvanians can apply for, receive, fill out and submit absentee ballots in one single stop.
The Debate Over Court Expansion Lingers Over These Kinds Of Voting Disputes
How the U.S. Supreme Court has handled this issue, and how it deals with any more voting issues that arise out of this election, looms large in the ongoing debate over whether Democrats should expand the Supreme Court if they take full control of Congress and the White House next. Pro-court reformers argue that it’s not just that a 6-3 conservative Supreme Court could block any and all progressive legislation passed by Democrats in the future. The conservative majority could also tinker with the instruments of democracy itself in a way that will make it impossible for Democrats to win elections in the future. The Pennsylvania dispute certainly fuels that argument.
It’s impossible to know for sure, but the threat of court-packing may have prompted Roberts to the swing towards the three liberal justices in the Pennsylvania dispute. His dissent in a 2015 Arizona redistricting reform case shows that, in the past, he had been sympathetic to the kinds of arguments Republicans are now making in the Pennsylvania dispute.
Roberts may have decided that the long term legitimacy of the court was more important to him than his personal legal views about those kinds of election cases. But once Barrett joins the court, he will no longer be the deciding vote when making that calculation.