Dems: SCOTUS Election Case Tie Ominous 10/21 06:07
With Amy Coney Barrett expected to join the Supreme Court as early as next
week, the court's action in a Pennsylvania voting case has heightened fears
among Democrats about the court being asked to decide a post-election dispute
and with it, the winner of the White House.
WASHINGTON (AP) -- With Amy Coney Barrett expected to join the Supreme Court
as early as next week, the court's action in a Pennsylvania voting case has
heightened fears among Democrats about the court being asked to decide a
post-election dispute and with it, the winner of the White House.
The justices split 4-4 Monday over a Republican plea to undo a state court
order and force elections officials to ignore absentee ballots received after
Election Day, Nov. 3. The tie vote left the Pennsylvania court order in effect
and allows mailed ballots to be counted if they are received by Nov. 6. Chief
Justice John Roberts and his three liberal colleagues voted to leave the court
order in place.
The four conservative members of the court who would have granted the GOP's
request are likely to be joined soon by Barrett. That's a potential majority,
even without Roberts, in any election-related dispute, whether from
Pennsylvania or any other battleground state where mailed-in ballots or a
recount fight could decide the winner.
"One more vote, provided by a hard-right, Trump-nominated justice, could be
the difference between voting rights and voting suppression," Senate Democratic
leader Chuck Schumer of New York said Tuesday.
President Donald Trump already has signaled one reason for Barrett's speedy
nomination, just eight days after Justice Ruth Bader Ginsburg's death, was to
have her confirmed and installed on the court in time for any election lawsuit
that might reach the justices.
The last time that happened was in 2000, when the court effectively decided
the presidential election in favor of George W. Bush by a 5-4 vote.
If nothing else, the split vote Monday strongly suggested there is not
likely to be the requisite five votes to upend a federal appeals court order
that has blocked a six-day extension of the time to receive and count absentee
ballots in Wisconsin. That case is pending at the Supreme Court.
The court's conservatives, Roberts included, have regularly sided with state
officials who object when a federal court relaxes election rules, even if the
changes arise from the coronavirus pandemic.
At the same time, the Supreme Court generally won't disturb state court
rulings that are rooted in state law.
But civil rights lawyers and election law experts said the vote in the
Pennsylvania case indicates at least four conservatives may be willing to look
at state court election-related decisions in a way that calls to mind Bush v.
Pennsylvania Republicans relied in part on an opinion from Justice Clarence
Thomas and two other conservative justices in Bush v. Gore to argue that the
Supreme Court should get involved in the case because the state court had
improperly taken powers given by the U.S. Constitution to state lawmakers when
it comes to presidential elections. The court ruled for Bush on other grounds,
that ballots were being handled differently across the state in violation of
the Constitution's guarantee of equal protection.
"Based on Judge Barrett's record, there is every reason to believe that she
would have been a fifth vote in favor of the Supreme Court overstepping its
bounds and interfering with a non-federal issue that would have jeopardized
voter access," said Kristen Clarke, president and executive director of the
Lawyers' Committee for Civil Rights Under Law. The group opposes Barrett's
The justices on Monday provided no written explanation of their votes, so it
is impossible to say exactly why Justices Samuel Alito, Neil Gorsuch, Brett
Kavanaugh and Thomas would have granted the Republican request or why the other
half of the shorthanded court didn't.
The Supreme Court has never cited Bush v. Gore in an opinion of the court,
and in its unsigned majority opinion the court wrote, "Our consideration is
limited to the present circumstances."
But two lawyers who worked for Bush's cause in 2000, Roberts and Kavanaugh,
now sit on the court. And they soon could be joined by a third, Barrett.