The Supreme Court might have stayed out of Pennsylvania’s plans for counting November’s ballots amid a pandemic for now, but the conservative justices sent a signal late Monday that the high court might not be so hands-off in the future.
In two orders, the justices deadlocked, 4-4, on a request from Republicans to undo a Pennsylvania state court decision that requires state officials to count mail-in ballots received up to three days after Election Day on Nov. 3, even if the ballots lack a postmark.
That tie meant the state court’s decision stays in place, an outcome from the shorthanded court that wasn’t necessarily unexpected. Each order was only one dry paragraph with no explanation for the decisions.
But election law experts see plenty of foreshadowing in the action ahead of an expected ideological shift at the Supreme Court — that the justices soon could get more involved in state-based voting rights protections across the country.
“State constitutions were a strong protector of the constitutional right to vote. That could be undermined if the Court goes down this path,” Joshua Douglas, an election law and voting rights professor at the University of Kentucky, tweeted Monday night. “So while today’s 4-4 ruling dodges a bullet for now, that bullet is coming very soon.”
The already conservative Supreme Court could become even more so as early as next week, when the Senate is expected to confirm Amy Coney Barrett to the vacancy left by the death last month of liberal Justice Ruth Bader Ginsburg.
Ahead of the election, the justices are facing several appeals ahead of Election Day as state officials grapple with running elections amid the outbreak of the highly contagious novel coronavirus. The justices, which took nearly two weeks to announce a decision on the Pennsylvania appeal, are also looking at challenges to voting rights decisions in Wisconsin and Alabama.
With Monday’s orders in the Pennsylvania case, state Democrats gain a short-term political advantage in what could be a pivotal state in the presidential election. The party brought the lawsuit amid worries that those who sought to avoid voting in person during a pandemic could be thwarted by delayed mail delivery if there are a lot of mail-in ballots.
The Pennsylvania Supreme Court decided that the state’s constitution required the expanded voter access. State Republicans then asked the Supreme Court to stop that state court order on an emergency basis, arguing that it violated the U.S. Constitution because it infringed on the legislature’s power to set elections.
Chief Justice John G. Roberts Jr., who is the most centrist of the five conservative justices, joined the three justices on the liberal wing of the court to prevent the Supreme Court from stepping into the dispute.
That foreshadows a new role for Roberts after Ginsburg’s death. In the past, Roberts has tended to avoid rulings that could harm the court’s politically neutral reputation. But such a strategy now could mean he sides more frequently with the liberal wing.
The four other conservative justices noted their dissent from the outcome, but did not explain why. They don’t have to do so on such an order, but their actions indicate that a Justice Barrett might provide the fifth vote to inject the high court into such disputes.
Barrett could have easily been that fifth vote “to side with the broad power of state legislatures against state Supreme Courts seeking to protect voting rights under the state constitution,” election law expert Rick Hasen, a professor at the University of California, Irvine School of Law, wrote Monday in Slate.
Josh Blackman, a professor at the South Texas College of Law in Houston, wrote on The Volokh Conspiracy blog that it could become a pattern at the high court: “If this split is a preview of things to come, Justice Barrett very well may be the tie-breaking vote in every election dispute, assuming she is not recused.”
Both Douglas and Hasen wrote that the 4-4 decision also suggests that Barrett could be a pivotal vote on the court in any election related litigation from key battleground states with Democratic nominee Joe Biden, such as Pennsylvania and North Carolina.
President Donald Trump has said he wants Barrett seated in time to potentially decide any election disputes. Such a repeat of the 2000 disputed election that reached the Supreme Court is unlikely, but the odds increase the closer the results of the election turn out to be.
“If Amy Coney Barrett joins the court next week as expected, she could be the deciding vote in any case that challenges election or recount rules set out by a Democratic-dominated state Supreme Court in a place like Pennsylvania or North Carolina in opposition to those states’ Republican legislatures,” Hasen wrote.
And Monday’s decision on whether to stop the state court decision on an emergency basis doesn’t necessarily mean the end of the line for the Pennsylvania dispute.
The Supreme Court didn’t resolve the legal dispute in the case, so the state’s Republicans could go back to the justices after Barrett is confirmed, and before Nov. 3, and ask them to decide the merits of the case immediately.
By then, some Pennsylvanians already might have relied on the state court’s ruling when deciding when and how to cast their ballots.