A divided Supreme Court rejected a Pennsylvania Republican effort to curtail mail-in voting, but experts say the Democratic victory may be short-lived — and confirming Supreme Court nominee Amy Coney Barrett would be a “disaster for Democrats.”
With Chief Justice John Roberts joining the court’s three liberals, the court split 4-4 to reject a request from Pennsylvania Republicans to block an order from the state’s Supreme Court allowing mail-in ballots to be counted if they are received within three days of Election Day — even if they do not have a clear postmark. The tie left the state decision in place, which Democratic lawyers hailed as “great news for voting rights.”
The four conservative justices, who would have blocked the state court ruling, did not issue a dissenting opinion to explain their votes.
“The unfathomable thing about the four justices siding [with] PA Republicans tonight: they would’ve stripped a state supreme court of the authority to say what the law is in their own state,” Bard College Professor Steven Mazie wrote on Twitter. “That’s way beyond right field. It’s judicial activism on steroids.”
If the conservatives had prevailed, the decision “would create legal chaos over a wide range of issues,” attorney Max Kennerly added.
“Tonight four conservative Supreme Court justices indicated their support for a radical, anti-democratic theory that would stop state Supreme Courts from enforcing state election laws to protect the franchise,” Slate’s Mark Joseph Stern wrote. “And Barrett could soon give them a fifth vote . . . The 2020 election may be in her hands.”
Though the court allowed the state order to stand, “that victory may only last a matter of days,” Vox’s Ian Millhiser reported. “Indeed, the GOP may be able to raise this issue again after Barrett is confirmed, potentially securing a court order requiring states like Pennsylvania to toss out an unknown number of ballots that arrive after Election Day. If the election is close, that could be enough to change the result.”
Some legal experts said it was possible, but unlikely, that the court would take the same case up again.
“It’s possible that Republicans can renew their application if and when Judge Barrett is confirmed, in the hopes that she’d side with them,” Steve Vladeck, a law professor at the University of Texas, wrote. “That said, that close to the election, it’s hard to imagine that all four of tonight’s dissenters would want to upset the status quo.”
Even if the case does not return to the high court, Barrett could be the deciding vote in numerous other challenges brought by Republicans or President Donald Trump’s campaign in Pennsylvania and other states, according to Rick Hasen, a professor at the University of California Irvine School of Law.
In the meantime, the Supreme Court’s split decision leaves many questions unanswered only14 days before the election.
“We have no guidance from the court as to when and whether a state Supreme Court can rely on a state Constitution when it expands or changes state voting rules in a presidential election,” Hasen wrote. “Even though Democrats opposed the stay sought by Republicans in the case, they begged the court to fully take the case and give an explanation as to the scope of state court power in this case. This lack of guidance could be a huge problem in the two battleground states — North Carolina and Pennsylvania — with Democratic state Supreme Courts and Republican legislatures who could battle over any post-election voting rules.”
Trump has repeatedly said he wants Barrett on the court in time for the election, because it “will end up in the Supreme Court.” He declared that he was “counting on them to look at the ballots” at the first presidential debate.
And other Republicans have echoed the president’s rhetoric. Sen. Ted Cruz, R-Texas, who opposed Merrick Garland’s nomination months ahead of the 2016 election, has argued that it is imperative to confirm Barrett before the election. Senate Judiciary Chairman Lindsey Graham, R-S.C., who likewise opposed Garland, also argued that it was necessary to speed through the confirmation, because “the court will decide” litigation about “who won the election.”
Barrett, who has not ruled on any election-related cases on the Seventh Circuit Court of Appeals, demurred when asked during her confirmation hearings if she would recuse herself from cases that could determine the outcome of the presidential election despite precedent possibly requiring her to do so.
“I commit to you to fully and faithfully applying the law of recusal, and part of the law is to consider any appearance questions,” Barrett told Sen. Pat Leahy, D-Vt. “And I will apply the factors that other justices have before me in determining whether the circumstances require my recusal or not. But I can’t offer a legal conclusion right now about the outcome of the decision I would reach.”
All of this potentially makes Monday’s ruling a disaster “for anyone who cares about democracy,” Millhiser wrote.
“If Democrats win this election, and they don’t pack the Supreme Court,” he added, “they could very well never win a national election again.”