In the minutes before Amy Coney Barrett was confirmed 52-48 by the Senate to join the Supreme Court, the Supreme Court itself released an emergency order making it harder for voters to have their ballots counted in Wisconsin again. A 5-3 Court refused to reinstate an initial lower court opinion which allowed six days for ballot mailing time. Summary of major developments:
- Amy Coney Barrett is confirmed to the Supreme Court by a partisan 52-48 Senate vote.
- Perfectly partisan 5-3 Supreme Court orders it harder for Wisconsin voters to have ballots counted. Ballots received after Election Day will be disregarded.
- Donald Trump administration has slowed Postal Service mail delivery to prevent ballots from arriving on time.
- There is no guarantee that ballots mailed out more than a few hours after this ruling will arrive in time to be counted.
- This is the second purely partisan ruling this year making it harder to count votes in Wisconsin, and the 39th purely partisan 5-4 or 5-3 ruling generally since Neil Gorsuch took a seat.
- Most Supreme Court voting rights cases since Neil Gorsuch joined the Court have been 5-4 partisan decisions making it harder to vote or count votes.
- A few have gone 5-4 the other way with John Roberts, Jr., joining Democratic appointees.
- Amy Coney Barrett would bring the balance to 6-3, making it virtually impossible for voting rights to survive Supreme Court challenges in the future.
- The future includes emergency orders coming around and after the 2020 election, including a rerun of a Pennsylvania case that narrowly upheld voting rights. Some think these orders may change the outcome of the election.
- Danger increases as COVID-19 pandemic hits record numbers in Wisconsin.
- Gerrymandered Republican controlled Wisconsin legislature has not met since April and has refused to accommodate voting in the pandemic.
- Wisconsin remains gerrymandered because a 5-4 Supreme Court refused to do anything about it.
The Supreme Court Order did not provide an overall opinion on its decision, but Justices wrote a total of 35 pages to make their points.
JOHN ROBERTS, JR., The Chief Justice, explains why he cut voting rights in this case but not in the recent Pennsylvania case:
I write separately to note that this case presents different issues than the applications this Court recently denied … While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes.
Those cases were 4-4. Amy Coney Barrett likely will make them 5-4 and the Roberts distinction will no longer matter.
See List of 5-4 Supreme Court Cases Where Ruth Bader Ginsburg Cast a Deciding Vote
BRETT KAVANAUGH also writes separately invoking Bush v. Gore, the 2000 unsigned 5-4 case that ended the vote count in Florida and declared George W. Bush the winner. Kavanaugh is one of three lawyers who worked for George W. Bush in the case. The others are John Roberts, Jr., and Amy Coney Barrett. Kavanaugh cites an opinion from the case by William Rehnquist:
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. To attach definitive weight to the pronouncement of a state court, when the very question at issue is whether the court has actually departed from the statutory meaning, would be to abdicate our responsibility to enforce the explicit requirements of Article II.” (Emphasis in original, citations omitted.)
Normally, a legislature passes a law and a court interprets the law. If legislators don’t like the court interpretation, they can rewrite the law to overturn the court ruling (but not Constitutional rulings of course). Also, federal courts do not interfere in state interpretations of state laws. Brett Kavanaugh is saying that these basic rules simply do not apply to elections — that the Supreme Court may substitute its own interpretation and overrule the state court immediately in election cases.
Brett Kavanaugh also complains about invalidating election “deadlines.” He appears to worry that counting votes too long could “flip” the election:
Those States want to avoid the chaos and suspicions of impropriety that can ensue if thou-sands of absentee ballots flow in after election day and potentially flip the results of an election.
On one hand, attempts to slow down the mail in violation of the law do not matter, but election law deadlines are sacrosanct. This is a formula for election cheating that doesn’t take a great legal mind to recognize.
ELENA KAGAN, disagreeing with Brett Kavanaugh, notes:
Wisconsin will throw out thousands of timely requested and timely cast mail ballots. And today’s decision does not stand alone. In other recent cases as well, the Court has halted injunctions necessary for people to cast ballots safely.
At the same time that JUSTICE KAVANAUGH defends this stance by decrying a “federal-judges-know-best vision of election administration,” he calls for more federal court involvement in “reviewing state-court decisions about state [election] law.” It is hard to know how to reconcile those two views about the federal judiciary’s role in voting-rights cases. Contrary to JUSTICE KAVANAUGH’s attempted explanation, neither the text of the Elections Clause nor our precedent interpreting it leads to his inconstant approach. (Citations omitted.)
Kagan directly takes on Kavanaugh’s “flip” worry:
JUSTICE KAVANAUGH alleges that “suspicions of impropriety” will result if “absentee ballots flow in after election day and potentially flip the results of an election.” But there are no results to “flip” until all valid votes are counted. And nothing could be more “suspicio[us]” or “improp[er]” than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is to disserve the electoral process. (Citation omitted.)
NEIL GORSUCH also writes separately with Brett Kavanaugh signing on. His essay reads like a politician’s speech of ideological platitudes and says little particular to the case at hand.