The Supreme Court's Ultraconservatives Are Preparing a Radical Assault on American Democracy

By Mark Joseph Stern, Slate

27 October 20

They just need Amy Coney Barrett’s vote to put their plan into action.

n Monday night, four Supreme Court justices signaled their desire to throw a bomb in the 2020 election—and every election thereafter. Their effort to sabotage the current race failed by one vote when Chief Justice John Roberts refused to go along with the plot, allowing Pennsylvania to ease mail-in voting rules in light of the pandemic. But these four ultraconservative justices will soon be joined by Amy Coney Barrett. And they have made it clear that once Barrett is confirmed, the Supreme Court will pose a clear and present danger to American democracy.

Monday’s orders from SCOTUS were technically a victory for Pennsylvania voters. By a 4–4 vote, with Roberts joining the remaining liberals, the court refused to block a decision by the Pennsylvania Supreme Court that compelled the state to count mail-in ballots received by Nov. 6. A Pennsylvania statute requires mail-in ballots to be returned by 8 p.m. on Election Day, but the Pennsylvania Supreme Court found that this deadline would disenfranchise voters. Requests for mail-in ballots overwhelmed the state’s election officials in the primary, causing a delay; many ballots weren’t even mailed out until the night of the primary. The combination of COVID-19 and U.S. Postal Service delays threatened a similar train wreck in November. In light of this problem, the Pennsylvania Supreme Court ruled in September that ballots mailed by Election Day and received by Nov. 6 must be counted.

The court rooted its decision in the Pennsylvania Constitution’s free and equal elections clause, which protects “a voter’s right to equal participation in the electoral process.” It is a bedrock rule that state supreme courts have final say over the meaning of state constitutions. Here, the Pennsylvania Supreme Court found that its state Constitution protects voters whose ballots arrive up to three days late through no fault of their own. The federal judiciary has no power to overturn this reading of the law.

Pennsylvania Republicans appealed the court’s decision anyway. They presented two alarming arguments. First, Republicans claimed that the court’s rule would violate federal statutes establishing a nationwide Election Day. Second, they alleged that the court had infringed upon the Pennsylvania General Assembly’s authority over federal elections. The first argument is nonsense that would suppress a huge number of votes in 18 states and the District of Columbia. But it is a modest proposal in comparison to the second argument, which would give state legislatures free rein to suppress the franchise with impunity.

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh dissented from Monday’s order, noting that they would have blocked the Pennsylvania Supreme Court’s decision. They did not explain why, but we can assume that they agreed with one or both of these claims. If a new challenge comes before the court, the justices may well use it to crush state safeguards protecting Americans’ right to vote in free and fair elections.

Start with Republicans’ first claim: that counting ballots received shortly after Nov. 3 runs afoul of the federal laws that create a uniform Election Day. The implications of this argument are breathtaking. At least 17 other states and D.C. count ballots received in the days or weeks after Nov. 3; if Pennsylvania’s three-day extension is illegal, so are these laws. For months, election officials have informed voters in these states that their ballot will be counted so long as it’s mailed by Election Day. If Pennsylvania Republicans prevailed, the voters who relied on this promise—thousands, at a minimum, and probably more—would be disenfranchised. So would voters serving in the military or living overseas, whose ballots are accepted after Nov. 3 in a majority of states.

But Pennsylvania Republicans’ legal interpretation cannot possibly be correct. Federal law only requires that ballots be cast by Election Day, not received. Republicans try to get around this problem by asserting that the Pennsylvania Supreme Court actually let voters mail back their ballots after Nov. 3. That’s just not true. The court adopted a procedure used in many other states: Voters must avow that they sent back their ballots by Election Day; those postmarked after Nov. 3 will not count, and those without a postmark are presumed valid if they arrive by Nov. 6 unless evidence suggests they were mailed late. Federal law prescribes no particular method for verifying ballots that arrive late, so states have filled in the gap. It is preposterous to insist that these widespread procedures are illegal. And if SCOTUS embraced this theory, it would have to strike down dozens of election laws on the eve of an election, nullifying countless ballots cast by Nov. 3 in reliance on state law.

Because this argument is so outlandish, it seems more plausible that the four conservative justices bought into Republicans’ second argument. Republicans cite two related constitutional provisions governing federal elections. These clauses give “the legislature” of each state power over the “manner” of holding congressional elections and appointing electors. The Pennsylvania GOP argues that the state Supreme Court’s rule unconstitutionally usurps power from the state legislature—which is currently under Republican control and opposes any expansion of voting rights.

Republicans have used this argument before, though it’s been unsuccessful thus far. In Bush v. Gore, then-candidate George W. Bush accused the Florida Supreme Court of wresting power of presidential elections from the Legislature. A majority of the U.S. Supreme Court declined to endorse the theory. More recently, in 2015’s Arizona State Legislature v. Arizona Independent Redistricting Commission, SCOTUS rejected Republicans’ theory that state legislatures have a constitutional right to gerrymander by a 5–4 vote. The majority held that other lawmakers—including the people themselves through a ballot initiative—can exercise “legislative power” in accordance with the Constitution.

But the Supreme Court has changed since 2015. The author of AIRC, Justice Ruth Bader Ginsburg, is dead, poised to be replaced by Barrett. The swing vote, Justice Anthony Kennedy, has been replaced by Kavanaugh. And Barrett’s hard-right record suggests she’ll join Thomas, Alito, Gorsuch, and Kavanaugh in reviving the theory giving state legislatures total power over federal elections.

If a majority of justices embrace this claim, it would effectively prevent a state judiciary from protecting voting rights whenever the legislature disagrees with its rulings. Every state constitution explicitly grants either the right to vote, the right to free elections, or both. State courts have repeatedly used these guarantees to combat voter suppression. For instance, the Pennsylvania Supreme Court previously interpreted the free and equal elections clause to limit partisan gerrymandering. So has the North Carolina judiciary. Other state courts have used state constitutions to invalidate draconian voter ID laws. If the conservative justices had prevailed on Monday, all these rulings would be in jeopardy. Whenever a state legislature disagreed with a state court about the “manner” of federal elections, the legislature’s view would win out. State courts would have no authority to protect the right to vote promised by their own state constitutions.

This theory could allow the Supreme Court to hand Trump the 2020 election. After all, the Pennsylvania case could come back to SCOTUS shortly after the election, when Barrett is confirmed. The presidential race may well turn on Pennsylvania, and the outcome in Pennsylvania could come down to those ballots received just after Election Day. If those ballots swing the state to Joe Biden, Barrett could vote with the four radical conservatives to reverse the Pennsylvania Supreme Court and throw them away. They could rule that the legislature—not the state judiciary, or even the voters themselves—gets to regulate elections and appoint electors. If the legislature says Trump is the true winner, the Supreme Court could once again overrule the will of the voters.

Take a step back from the legal dispute here and consider the broader implications of what four justices did on Monday. A mere 15 days out from a presidential election, these justices tried to stop a state Supreme Court from safeguarding the right to vote by enforcing its state’s constitution. Basic principles of federalism counsel against federal intervention in a state court’s interpretation of its own election laws. Yet four justices would leap in at the last minute to block the Pennsylvania Supreme Court’s efforts on the basis of extreme theories that go against decades of precedent. Their actions evince a startling hostility to voting rights and fair elections. Democrats who celebrated Monday’s decision are either naive or delusional. It was a fleeting victory that portends a crushing blow to democracy the moment Barrett dons her robe.