The confirmation and swearing-in of Amy Coney Barrett as an Associate Justice of the U.S. Supreme Court has major implications for potential ballot-counting disputes in critical election battleground states. Operating on the assumption that Democrat voters rely on mail-in ballots more than Republican voters, a legal ruling that could order the rejection of mail-in ballots received by election officials after election day could affect ultimate control of the White House and U.S. Senate.
Coronavirus and Voter Flexibility: The pandemic has triggered legislative and judicial actions that attempt to provide flexible voting options for individuals concerned about infection risk at polling places. This past weekend, two cases arising in two critical battleground states made their way to the U.S. Supreme Court and there is a reasonable likelihood of Court action in both cases.
First, Republicans have sought full Supreme Court review of a Pennsylvania Supreme Court decision that extends the deadline for receipt of mail-in ballots by three days. The U.S. Supreme Court split 4-4 last week in denying a stay of the state court decision, making the three-day extension the current law of the state. But seeking a stay is not the same thing as asking for a full review on the merits of the underlying legal issue and the weekend filing now asks for such review. As four Justices would have stayed the Pennsylvania court order extending the mail-in ballot deadline, it is reasonable to expect the Supreme Court will have the necessary four votes to grant the petition for review (grant certiorari).
Second, Republicans have sought a stay of a federal appeals court en banc decision that allows North Carolina election officials to extend the mail-in ballot receipt deadline through November 12 (nine days after the November 3 election). The decision also allows the state election board to dispense with a statutory requirement that execution of mail-in ballots be witnessed by at least one individual. Under the state legislation passed in June as a result of pandemic challenges, the prior witness requirement was reduced from two witnesses to one witness although the deadline for receipt of ballots was maintained at three days after election day.
A state court settlement involving a voting group and the election board implemented the six-day extension and the effective elimination of the witness requirement.
If the Supreme Court rejects the Republicans' request to suspend (stay) North Carolina's modified election rules, we expect a petition for full review of the legal issues and a reasonable chance of a Court hearing.
We also note two other key battleground states that extended ballot receipt deadlines that varied from codified state laws -- Wisconsin and Michigan. As of now, a lower federal court decision in Wisconsin and a state court decision in Michigan that extended the ballot receipt deadlines in those respective states have been blocked, re-instituting the election day deadline for acceptance of mail-in ballots. Thus, the current state of law in Wisconsin and Michigan requires all ballots to be received by the evening (8 pm) of election night. There is the prospect of further appeal in these cases and potential changes will be monitored.
The Constitutional Question: Distilled to its essence, the basic issue headed for Supreme Court review is whether courts or election boards can modify state laws setting the rules for the election of the President and members of congress. The U.S. Constitution explicitly confers on state legislatures the power to establish the time, place and manner of congressional elections. For presidential elections, the Constitution confers on state legislatures the authority to determine how presidential electors are appointed.
Why Justice Barrett Makes a Difference: The Pennsylvania and North Carolina cases will focus on this fundamental question and the addition of Justice Amy Coney Barrett, the replacement for Justice Ruth Bader Ginsburg, probably tilts the Court in a more "textualist" direction. In other words, and risking some oversimplification, her confirmation boosts support for a more "open and shut" view of the law based on a common usage interpretation of constitutional and statutory text. The willingness to interpret the law based on an investigation of legislative intent takes a more diminished role in reaching ultimate decisions.
The Pennsylvania and North Carolina Disputes: In Pennsylvania, the relevant state statute requires that mail-in ballots be received by election night. The State Supreme Court, acting on extraordinary authority to ensure "free and equal" elections, extended the deadline for receipt of mail-in ballots, noting concerns the U.S. Postal Service would experience delivery delays due to heavy pandemic-driven demands for absentee and mail-in ballots. Labeling the pandemic a "natural disaster" that justified its action, the Pennsylvania Supreme Court considered its ruling essential to avoid voter disenfranchisement.
In North Carolina, a state court settlement resulted in abrogation of the witness requirement and extension of the mail-in ballot deadline (for ballots postmarked by election day). The federal appeals court, in a 12-3 en banc decision, determined it lacked jurisdiction to decide whether the deadline extension and deletion of the witness requirement violated the constitutional command that the legislature, not courts, establish such rules. The majority said state courts need to decide whether the election process modifications were legal under state law (election board ad hoc power in a natural disaster) before the federal courts can decide the federal constitutional issue (the Pullman abstention doctrine in the language of legal nerds).
The three dissenters (all Republican appointees) called for immediate appeal to the Supreme Court, contending that deference to state court action is inappropriate when the issue involves compliance with a specific federal constitutional requirement. The dissenters argue a state court cannot modify the relevant election rules when the Constitution confers exclusive authority for such rules on state legislatures.
The Purcell Principle: In the election context, a competing Supreme Court precedent could be in play. In Purcell v. Gonzalez (2006), the Supreme Court ruled that federal courts should avoid issuing decisions that change election laws shortly before election day. The Court noted concerns about confusion and possible discouragement of voter participation. This precedent was relied on by a federal trial court judge in the North Carolina case when he concluded the actions of the state court were probably illegal but allowed them to go into effect with the election only days away. Because the state actions in question may conflict with explicit constitutional directives, we suspect the Supreme Court will eschew the guidance of Purcell and decide the big issues.
An Upcoming Constitutional Court Fight? Assuming the Supreme Court grants review in either or both of these cases, the Court could again be the focus of a post-election dispute reminiscent of Bush v. Gore following the 2000 election. Although these cases would be briefed and argued on an expedited basis, the conservatives on the Court (a solid majority with the addition of Justice Barrett) would probably be inclined to reject court-ordered extensions of ballot receipt deadlines and dismissal of codified witness requirements. The plain text of the relevant constitutional provisions specify that the legislature makes the rules and we doubt the Court will validate delegation of this responsibility to state courts or executive branch officials. Immediate adjustments by election boards for natural disasters may be acceptable, but wholesale court-ordered changes in state election law for a virus that has already been the focus of state legislative enactments early in 2020 will likely be viewed as an overreach beyond the bounds of the U.S. Constitution.
If Pennsylvania and/or North Carolina appear outcome-determinative in a post-election ballot-counting dispute, the confirmation of Justice Amy Coney Barrett to the Supreme Court probably moves the litigation odds more favorably toward President Trump.
COUNTDOWN: 6 days until Election Day.
CAMPAIGN 2020: Joe Biden will travel to Georgia today, Florida on Thursday, and Iowa and Wisconsin on Friday. Senator Kamala Harris will campaign in Nevada today, Arizona on Wednesday, and Texas on Friday. President Trump will hold rallies in Michigan, Wisconsin, and Nebraska today and will travel to Arizona on Wednesday. Vice President Pence will campaign in North Carolina and Minnesota today, Wisconsin on Wednesday, and in Michigan, Iowa, and Nevada on Thursday.
EARLY VOTING: Over 61 million voters have cast their ballots as of Monday afternoon, surging past the record set in 2016 when 58 million voters cast their ballots by mail or early in person. This is over 44% of 2016’s total turnout. Texas continues to lead the early vote statistics, with over 7 million ballots cast – 82% of its 2016 turnout.