Think This Election Will End Up in Front of the Supreme Court? It’s Already There.
The 2020 presidential election is already being litigated in front of the U.S. Supreme Court even though Election Day is still a week away.
In a few key swing states, the rules under which the election will be conducted remain unsettled, including the potentially all-important question of when the polls will actually close—that is, when will states stop accepting mail-in ballots. Newly confirmed Justice Amy Coney Barrett could help decide these questions, though she may recuse herself (more on that in a minute).
The three outstanding cases involve absentee ballot rules in Pennsylvania, North Carolina, and Minnesota. In all three cases, Republicans are asking the Supreme Court to block state-level rules set by Democrats that allow mail-in ballots to be counted even if they are received days after the election, as long as the ballots appear to have been mailed by Election Day. In a close race, the decision to count ballots that are received in the days after the election—or, in North Carolina’s case, all the way up until Nov. 12—could tip the results one way or another.
Generally, the Supreme Court has been deferential to state officials when it comes to setting the rules for elections. Indeed, that’s what happened again on Monday night when the Court rejected a challenge brought by Democrats that sought to force Wisconsin to accept absentee ballots for up to six days after the election—overturning a district court ruling that had ordered the state to do so.
“No one doubts that conducting a national election amid a pandemic poses serious challenges,” wrote Justice Neil Gorsuch in one of three concurring opinions released as part of the 5-3 ruling (there was no majority opinion). “But none of that means individual judges may improvise with their own election rules in place of those the people’s representatives have adopted.”
Gorsuch’s opinion and separate concurring opinions from Justice Brett Kavanaugh and Chief Justice John Roberts may indicate how the Court is approaching similar issues in the Minnesota, North Carolina, and Pennsylvania cases. In fact, Kavanaugh and Justice Elena Kagan, who wrote the dissenting opinion in yesterday’s Wisconsin case, spent a fair bit of time in their respective opinions debating Pennsylvania rather than Wisconsin.
That’s because the Pennsylvania case is different in a subtle but potentially important way. Unlike the Wisconsin case, which moved through the federal court system up to the U.S. Supreme Court, the Pennsylvania case is on appeal from the state Supreme Court.
In his concurring opinion on Monday, Kavanaugh went out of his way to drop in a footnote explicitly noting that “under the U.S. Constitution, the
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