For the second time in one day on Wednesday, the Supreme Court rejected a Republican effort to block a state’s extension for the receipt and counting of mail-in votes beyond Election Day, this time in North Carolina. Supreme Court Rejects Trump Campaign’s Bid to Block Mail-in Voting Extension in N.C.:
The ruling fell hours after the high court declined to grant an expedited hearing to Pennsylvania Republicans challenging a three-day window to process mail-in ballots that trickle in after Nov. 3. In the North Carolina case, the ballot-counting deadline extension in question was up to nine days after Election Day.
In both cases, newly minted Justice Amy Coney Barrett declined to participate, while fellow Donald Trump appointee Brett Kavanaugh said nothing. Justices Samuel Alito, Clarence Thomas and Neil Gorsuch would have granted a Supreme Court audience in both cases, only to be outvoted by the court’s liberal wing and chief justice.
In Republican Party of Pennsylvania v. Boockvar, Alito wrote a statement railing against the Supreme Court’s handling of the Pennsylvania case.
“The Court’s handling of the important constitutional issue raised by this matter has needlessly created conditions that could lead to serious post-election problems,” he wrote for the trio of conservatives. Alito also warned that it might not be the last we hear of the Pennsylvania case:
Although the Court denies the motion to expedite, the petition for certiorari remains before us, and if it is granted, the case can then be decided under a shortened schedule. In addition, the Court’s denial of the motion to expedite is not a denial of a request for this Court to order that ballots received after election day be segregated so that if the State Supreme Court’s decision is ultimately overturned, a targeted remedy will be available.
Thomas, Alito and Gorsuch’s dissension came without comment in the North Carolina case. In fact, none of the justices commented beyond the issued order.
Republican National Party Committees and two Republican U.S. congressmen were also involved in the North Carolina challenge, which was captioned Wise v. Circosta.
Election law expert Rick Hasen analyzes the two rulings on Wednesday. First, the North Carolina case, Breaking and Analysis: Supreme Court, Over at Least 3 Dissents, Refuses to Roll Back North Carolina Extension Date for Receipt of Absentee Ballots:
You can find the Court’s order, along with Justice Gorsuch’s dissent, at this link. Justice Alito joined Gorsuch’s dissent; Justice Thomas noted his disagreement with the majority but did not sign the dissent. Justice Barrett again did not participate.
The Gorsuch dissent primarily argues that a North Carolina election board settlement approved by a state court usurped the power of the state legislature, although he also analogizes the holding to the one in the Wisconsin case, which involved a federal court and totally different issues (i.e., the power of a federal court, close to the election, to alter election rules to protect constitutional rights). Justice Gorsuch seems to be trying to move the Purcell principle to apply to state agency actions, and that would be an even bigger problem than applying it to federal court decisions.
There are a few reasons to explain why this position did not attract the votes of CJ Roberts or J. Kavanaugh. First, the issue is messier; to some extent the legislature delegated the power to the state agency to enter into settlements. There’s also the timing and reliance issue; many, many voters have already made their voting plans dependent on the deadlines announced in the settlement, and now we are just days away from the election and there would be no other recourse for some of those voters to vote.
Unlike Justice Alito’s statement in today’s Pennsylvania ruling, Justice Gorsuch’s statement does not talk about any post-election action or any segregation of ballots. But segregation of those late arriving ballots might still make sense, for reasons I explained here in the context of Pennsylvania: it would make it harder for the NC General Assembly to declare the election somehow void and try to get around with the appointment of separate presidential electors.
UPDATE: A few people have pointed out to me that it is possible that this was a 4-4 vote, as it would take 5 to grant the injunction, and J. Kavanaugh (or another Justice) did not note his (or her) dissent. Possible.
Second, Hasen’s earlier analysis of the Pennsylvania case. Breaking and Analysis: Supreme Court (with Justice Barrett Not Participating) Refuses Again Emergency Relief in Pennsylvania Ballot Deadline Case; At Least 3 Justices See Constitutional Issues Ahead:
The Supreme Court (with Justice Barrett not participating) has refused to expedite consideration of the cert. petition in the Pennsylvania voting case. Justices Alito, Gorsuch, and Thomas issued a separate statement saying that time was too late to review things now, but strongly stating a belief that counting the later ballots would be unconstitutional and that there could well be review after the election of the consideration of these ballots.
The result is not surprising, nor is the lineup. Indeed I predicted that Chief Justice Roberts and Justice Kavanaugh would not go along with an attempt to relitigate this issue given the very strong reliance arguments (coming from the Court’s earlier refusal to grant a stay) and the likely lack of standing of the PA GOP which brought this latest request (without the GOP legislature).
The big headline out of this decision is the very strong version of the “independent state legislature” doctrine that appears in the separate Alito statement: “The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.”
To translate this a bit: there are now at least four Justices (if you count Justice Kavanaugh’s views on the merits of this expressed in this week’s Wisconsin case) who believe that when a state Supreme Court applies a state constitution’s protection for voting rights and does so in a way that alters a statute done by the legislature, that act is presumptively illegitimate. That is going to have some very bad ramifications for voting rights going forward and also raises questions about whether states will be able to pass redistricting and other reforms by voter initiative going forward. (Reaching initiatives would require overturning the 2015 Arizona case,[Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787 (2015)], but that seems to be well within the realm of future possibilities.)
But what does this mean for a future challenge in the Pennsylvania case and other potential 2020-election related litigation? First, I continue to believe, as I’ve been saying, that given the reliance interests whereby PA voters knew from a few weeks ago that the Supreme Court was not changing the deadline, it’s too late to give a different remedy now. PA voters simply cannot return their ballots in time under the old deadlines and even TODAY the PA website is telling voters to mail their ballots by election day.
Without Roberts and Kavanaugh going along, even if Justice Barrett participated in future cases there would not be 5 Justices to throw out those ballots. It is still a theoretical possibility however, especially with ballots now being segregated between those arriving by the original statutory deadline and later ballots. Hopefully the election will not be close enough in either PA or the electoral college and the issue becomes moot in this election.
But if the issue of the power of state legislatures against state courts comes up again in the 2020 election cycle, and if Justice Barrett participates, then there could well be a different result. As I explained yesterday in the Washington Post:
This theory would matter if, say, Pennsylvania or North Carolina were having a dispute about a recount in which Biden was behind and the state was running out of time to resolve disputes over the ballots. Both states have Democratic-majority state supreme courts, which could order rules for resolving these disputes consistent with their state constitutions but against the wishes of the states’ Republican-dominated legislatures. The conservatives on the court could embrace Kavanaugh’s version of Rehnquist’s Bush v. Gore theory and say that the state court’s changes to allow a full vote count were impermissible, stopping the count.
And although the Supreme Court deadlocked 4-4 on a similar issue last week out of Pennsylvania, with new Justice Amy Coney Barrett seated the court could now be 5-4 on this issue, even if Chief Justice John G. Roberts Jr. does not buy into the theory of broad legislative power endorsed by Kavanaugh and Gorsuch.
And what to make of Justice Barrett sitting this one out? Did she simply decide there was not enough time to get up to speed on this (a perfectly reasonable conclusion given when she joined the Court!) or is she going to recuse in all 2020-election related litigation? There is no way to know yet.
By the way, Trump’s Ballot-Counting Demand Would Disenfranchise Overseas Troops:
President Donald Trump, in social media posts and remarks, is demanding that all ballots be counted by election night, even though federal law permits states to count ballots from troops stationed outside the United States, diplomats and other Americans abroad to have their ballots counted days later, as long as they were sent no later than Election Day.
According to the Federal Voting Assistance Program, there are 4.8 million U.S. citizens abroad, with nearly 3 million eligible to vote. Just under 1 million are members of the U.S. military. Because of the difficulties and delays inherent in sending and receiving mail internationally, the Uniformed and Overseas Citizens Absentee Voting Act was signed in 1986 to make sure such votes get counted by setting deadlines for how late ballots could be mailed to recipients overseas and permitting them to be counted if they arrived after Election Day.
States likely to be pivotal next week have deadlines for receiving those ballots that range from Nov. 6 in Georgia to Nov. 9 in Texas to Nov. 12 in North Carolina to Nov. 17 in Michigan. Trump’s insistence on stopping the vote count on Nov. 3 would, if he succeeds, disqualify any ballot that arrived in those states after election night.
GOP strategist Mac Stipanovich, who worked for George W. Bush during the 2000 Florida recount, said it was ironic that the leader of today’s Republican Party has no problem disenfranchising military personnel abroad.
“Well, I guess they’re dumb-asses for going overseas,” he said, referring to a September article in The Atlantic reporting that Trump had called soldiers “suckers” and “losers” for risking their lives on behalf of the country.
“This is unsurprising,” Stipanovich said. “It’s just solely about him. The soldiers, sailors and Marines don’t matter. The foreign service officers don’t matter.”
Justice Alito, mockingly referred to as “Scalito” when Justice Scalia was still alive because he always followed Scalia’s lead, has emerged as the second most radical of the conservatives on the court, second only to the hyper-partisan Justice Thomas (the influence of his wife Ginny, a GOP activist power player, has a lot to do with this). Newly minted Justice Barrett was mentored by Justice Scalia, and she has been described as the female Scalia. We’ll soon find out. Justice Gorsuch, who had shown flashes of becoming the occasional swing vote like former Justice Kennedy, is proving a disappointment when it comes to voting rights. Justice Kavanaugh is intellectually lazy, as his opinion in the Wisconsin election challenge demonstrates, and is temperamentally unfit to serve on the highest court. And Chief Justice John Roberts has been the point man for GOP voter suppression his entire legal career.
I have little faith in any of these Republican appointed conservative justices doing the right thing and defending the sacred right to vote in a free and fair democratic election.
Rep. Lewis spoke in Congress in support of HR 1, the For the People Act. “The right to vote is precious, almost sacred. In a democratic society it is the most powerful nonviolent instrument or tool that we have. In my heart of hearts, I believe we have a moral responsibility to restore access for all of our citizens who decide to participate in the democratic process.”
Lewis went on to express his sadness when he saw voter suppression, and his hope that all U.S. citizens would have the opportunity to vote. “We all know that this is not a Democratic or Republican issue,” he said. “It is an American one.”
If only our Supreme Court Justices were as equally committed to this American ideal as the late great Rep. John Lewis.
“I have little faith in any of these Republican appointed conservative justices doing the right thing and defending the sacred right to vote in a free and fair democratic election.”
This is worrisome, to be sure. If the GOP sees a way to steal the election, they will do it, in broad daylight, they just don’t care what happens next. I only hope there are enough Democratic voters to bury them this time around.