Court Poised to Decide Presidential Election?

           The Supreme Court has put itself in position to determine the winner of Tuesday’s presidential election, just as the Court did twenty years ago in Bush v. Gore, to its lasting discredit. At worst, the Republican-majority Roberts Court could be remembered, just as the previous Court is remembered, for making it impossible to ascertain the true winner of a hotly contested presidential election.

            The best hope for the Roberts Court to avoid being caught in a partisan cat-fight is a decisive popular vote mandate for the Democratic nominee, Biden. An overwhelming national vote count, along with decisive margins in battleground states, might render moot the various legal challenges to late vote-counting that President Trump and his supporters seem certain to file in blue-voting states.

            In dealing with a succession of election procedure cases over the past six weeks or so, the Supreme Court has lost sight of what should have been the overarching ratio decidendi—the importance of ensuring that “every vote counts,” just as the pre-Election Day public service announcements tell us. Instead, the justices have allowed accommodations for voters in some cases and disallowed them in others, based on formalistic distinctions rather than the need to strengthen and protect the constitutionally protected right to vote at a time when in-person voting turns crowded public gatherings such as voting lines into a serious risk to personal health.

            The likelihood of deciding Tuesday’s election in the courts instead of at the ballot box increased with a lawsuit filed late last week [Oct. 28] by Texas Republicans seeking to throw out up to 100,000 ballots cast in curbside voting in predominantly Democratic Harris County, which includes the nation’s fourth largest city, Houston. The Republican plaintiffs in Hotze v. Hollins—a GOP state legislator, a Republican candidate for Congress, and two voters—contend in their complaint that the Harris County clerk Chris Hollins violated state and federal law by allowing indiscriminate drive-through curbside voting, which they say is not a legal “polling place” under state law nor permitted by any of Texas’s other 253 counties.

            With contact-less meal delivery now the norm in the midst of the novel coronavirus pandemic, Hollins explained his decision as a way for voters to cast ballots from the safety of their own car.  and thus avoid the risk of contacts with Covid-exposed voters in long lines of the sort seen in many jurisdictions across the county as early voting has spiked to record levels. Hollins contends he got authority for the procedure from the Republican secretary of state, but the Hotze plaintiffs note accurately that the Texas Supreme Court rejected the procedure unless the would-be drive-thru voter met specific conditions listed in state law.

            The GOP plaintiffs got a generous serving of home-cooking when the case was assigned to a federal judge, Andrew Hanen, who has an established reputation as one of the most partisan Republican jurists not just in the Lone Star State but in the entire country. The plaintiffs cite Bush v. Gore itself to show that Hollins’ decision to permit a voting procedure adopted nowhere else in the state violates the Equal Protection Clause’s supposed guarantee for uniform election procedures throughout an individual state.

            Democrats and their voting rights allies were cheered by two Supreme Court decisions last week [Oct. 28] allowing extended deadlines for mailed ballots in two battleground states, North Carolina and Pennsylvania. The 5-3 decisions in the two cases—Moore v. Circosta and Republican Party of Pennsylvania v. Boockvar—turned apparently on a jurisdictional line: state officials themselves had allowed the extended deadlines, the chair of the state board of elections in the North Carolina case and the secretary of state in Pennsylvania. Roberts and Kavanaugh cast pivotal votes to allow the extended deadlines, with their harder-line conservative colleagues in dissent: Thomas, Alito, and Gorsuch.

            The Court on the same day blocked extended deadlines for mail ballots in Wisconsin by staying a federal district court judge’s order to give more time for ballots to reach vote-counting election offices. The 5-3 vote in Democratic National Committee v. Wisconsin State Legislature pitted the five conservatives against the three liberal justices in dissent: Breyer, Sotomayor, and Kagan. Roberts explained the at-variance results in the day’s cases by contending in a one-paragraph opinion that the federal court’s intervention in the Wisconsin case was “improper” while the other two cases “implicated the authority of state courts to apply their own constitutions to election regulations.”

            In an 18-page opinion explaining his own vote in the Wisconsin case, Kavanaugh warned that the public may lose confidence in an election result if late-counted ballots “flip” the apparent Election Night result. Rick Hasen, the prominent election law expert at the University of California-Irvine, aptly accused Kavanaugh of adopting a “Trumpian mindset” in his opinion by casting doubt on any ballots counted after Election Night.

In a 12-page dissenting opinion, Kagan refuted Kavanaugh’s premise by noting that “there are no results to ‘flip’ until all votes are counted.” She argued that public confidence in the election was at greater risk from the likely discarding of thousands of ballots cast by voters in a timely fashion but delivered only belatedly because of delays in mail service.

            Together, the Supreme Court’s decisions in effect give Trump a roadmap to contesting state by state results in Tuesday’s voting and subsequent ballot-counting: file the suits in federal courts instead of in state courts. A federal judge’s ruling to count challenged ballots will get little deference at One First Street, especially after Trump’s third appointed justice, Amy Coney Barrett, settles in and gives the Republicans a hard-to-block 6-3 majority.

Barrett Could Be Decisive in Election Cases

            Make no mistake: the fast-paced nomination and confirmation of Judge Amy Coney Barrett to the Supreme Court is a critical step in President Trump’s long-shot strategy to win re-election even if he loses the nationwide popular vote for a second time.

            Trump designated the Supreme Court as an essential decisionmaker in the 2020 presidential election on Sept. 21, five days before the Rose Garden ceremony to announce Barrett’s nomination to fill the vacancy left by the death of Justice Ruth Bader Ginsburg.

Answering questions from reporters on the White House grounds, Trump explained why he was rushing to fill the ninth seat as soon as possible. “We need nine justices,” Trump said, according to news accounts of the exchange. “You need that. With the unsolicited millions of ballots that they're sending . . .  you're gonna need nine justices."

            The importance of Barrett’s potential vote in election-related cases became apparent last week after the eight-justice Court divided 4-4 on Monday [Oct. 19] in decisions in two companion Pennsylvania case, Pennsylvania Republican Party v. Boockvar and Scarnatti v. Boockvar, to allow extended deadlines for receiving mail ballots within six days after Election Day. The Pennsylvania Republican Party in one case, and GOP legislative leaders in the other, were challenging a decision by the Pennsylvania Supreme Court, based on a broadly phrased right-to-vote provision in the state’s constitution, to extend the legislated deadlines for receiving this year’s anticipated surge in mail ballots.

            Four conservative justices – Thomas, Alito, Gorsuch, and Kavanaugh – said they would have stayed the Pennsylvania Supreme Court decision as the Republicans were asking. Chief Justice Roberts created the inconclusive 4-4 split by siding with the three remaining justices in the Court’s liberal wing: Breyer, Sotomayor, and Kagan. None of the justices wrote to explain their reasons for either granting or denying the stay.

            The four votes to override the state’s supreme court came from conservative justices who ordinarily steer clear, in the interest of federalism, of intruding on states’ prerogatives. The Washington Post’s coverage of the decision carried the prescient headline: “High court split in Pa. case portends Barrett’s pivotal role.”

            In his analysis of the decision, election law expert Rick Hasen at the University of California-Irvine Law School noted that Democrats had urged the justices to rule on the case only after full briefing and argument and only with full opinions. By withholding any explanation of the decision, Hasen wrote, the Court was laying the foundation for “a huge problem in two battleground states”– North Carolina and Pennsylvania – where Democratic-majority state supreme courts and Republican-controlled legislatures could end up clashing over ballot-counting rules.

            Trump carried both of these battleground states, North Carolina and Pennsylvania, in 2016 with less than a majority of the popular vote. He carried Pennsylvania with its 20 electoral votes by 44,000 votes over Democrat Hillary Clinton; he carried North Carolina with its 15 electoral votes by a wider margin, around 173,000 votes. Public opinions polls indicate likely close votes in both states in this year’s election.

            Two companion North Carolina cases are, in fact, pending before the justices as this column is being written on Saturday [Oct. 24]: Wise v Circosta and Moore v. Circosta. Republican members of Congress and Republican legislative leaders in the Tar Heel State are seeking to enjoin a decision by the chair of the state’s board of elections, Damon Circosta, to extend the deadline for receiving mail ballots by six days because of anticipated mail delays in delivering ballots.

Circosta and voting rights groups filed their responses on Saturday afternoon. The justices took an unusually long time – two weeks -- to rule in the Pennsylvania case, so a decision in this similar case from North Carolina may take several days or longer.

            The Court has already decided, with mixed results, a handful of similar cases from states where Republicans or the Trump campaign challenged pandemic-related accommodations for voting and counting ballots. In another case decided last week [Oct. 21], the justices divided 5-3 in overriding a federal district court judge’s order to allow counties in Alabama to permit curbside voting in this year’s election. The three liberal justices – Breyer, Sotomayor, and Kagan – said they would have denied the stay requested in Merrill  v. People First of Alabama by the state’s Republican secretary of state, John Merrill, who had banned curbside voting statewide.

            In ruby-red Alabama, the dispute seemed likely to be inconsequential in determining the outcome of the presidential contest between Trump and his Democratic opponent, former vice president Joe Biden. Four years ago, Trump carried the state, with its nine electoral votes, with 62 percent of the popular vote. But oddsmakers foresee a close race this year for the U.S. Senate seat won in 2018 by Democrat Doug Jones, who is seen as trailing his Republican opponent, the former college football coach Tommy Tuberville.

            The Court’s divided votes and seemingly inconsistent decisions underscore Barrett’s pivotal role once the Senate completes her confirmation, as expected, on Monday [Oct. 26]. Trump’s broadly phrased, unsubstantiated claims of mail ballot irregularities portend a likely post-Nov. 3 strategy of challenging results in any states with relatively narrow margins. Barrett steadfastly refused during her confirmation hearing to pledge to recuse herself in any such cases and instead promised only to consult with her future colleagues on the question.

Barrett Won't Pull Away From Trump's Coattails

           President Trump’s Supreme Court appointee, Judge Amy Coney Barrett, asked the Senate Judiciary Committee last week [Oct. 14] to trust in her independence and integrity if confirmed to the Court. Barrett’s evasions on any questions touching on Trump’s views, however, provide good reason for doubting her independence from Trump if seated to join the five other Republican-appointed justices.

            Barrett made her plea as Democratic senators, including Delaware’s Chris Coons, pressed for a promise to recuse herself from the election-related litigation that Trump promised to bring to the Supreme Court almost in the same breath as he was nominating Barrett. “I certainly hope that all members of the committee have more confidence in my integrity than to think I would allow myself to be used as a pawn to decide this election for the American people,” she said on Tuesday [Oct. 13], in the first of her three days of questions from the Republican-majority committee.

            The recusal issue was one of at least five lines of questions from Democrats that gave Barrett easy options to pull herself away from Trump’s coattails. But she begged off on each one, by hiding behind the need to avoid opining on what she described as “contentious” public policy issues or on legal questions that might come before her as a  justice.

            Her non-answer on the recusal issue was especially inane. She promised not to make the decision for herself but to decide only after consulting with her colleagues—supposedly the standard practice for justices pressed for recusal because of some possible conflict of interest. It must be noted that the Roberts Court has divided along partisan lines in several election-related cases over the past year.

When Trump v. The American People reaches the Court, the five Republican-appointed justices, including Trump’s previous two appointees, may well want or need Barrett’s vote to solidify a majority for the petitioner president. Indeed, think back to Bush v. Gore when Justice Sandra Day O’Connor, a Bush supporter, gave the Republican-appointed conservatives the needed vote to end the Florida recount that might have cost Bush the election.

Republican senators offered Barrett a rationale for non-recusal in the eventual Trump case by noting that President Clinton’s two appointees, Ginsburg and Breyer, were not pressed to recuse themselves several years after their appointments when Clinton v. Jones reached the Court. In fact, Ginsburg and Breyer both voted in the eventually unanimous decision against Clinton’s plea for immunity from civil lawsuits while serving as president.

The other issues that Barrett ducked included voter intimidation, climate change, systemic racism, and the president’s pardon power. Barrett must have seen that the easy answer to each of those questions would have generated mini-headlines separating herself from Trump’s positions. In that regard, it is worth recalling that as Supreme Court nominee, then-Judge Neil Gorsuch showed at least enough integrity to distance himself from Trump’s criticism of the “Mexican judge” who was presiding over the civil lawsuit against Trump University.

Minnesota’s Amy Klobuchar noted to Barrett that the Trump campaign is recruiting individuals with “special forces” experience to act as poll watchers on or before Nov. 3. Klobuchar asked, in effect, whether the presence of armed poll watchers would amount to voter intimidation under federal law. Barrett hid her non-answer behind a legalism. “I can’t characterize the facts in a hypothetical situation,” she said.

Barrett was similarly agnostic when asked whether she believes that climate change is occurring, as all reputable scientists believe. Barrett surely knows that her presidential benefactor has described climate change as “a hoax.” Had she indicated agreement with scientists instead of with the non-scientist Trump, the headline writes itself: “Barrett Clashes With Trump on Climate Change.”

Barrett similarly avoided directly acknowledging to New Jersey’s Cory Booker the presence of systemic racism in the criminal justice system today. Again, Trump and his attorney general, William Barr, have resisted any generalized acknowledgment of racism in criminal justice. With her non-answer, Barrett aligned herself with the Trump administration non-position.

With Trump under investigation for possible criminal prosecution by the New York City district attorney’s office, Trump might be considering trying to pardon himself as he leaves the White House after failing re-election. Under questioning by Vermont’s Patrick Leahy, Barrett declined to opine on what she called “an open question” about the president’s self-pardoning power. Still, she might at least have quoted the centuries-old Latin maxim “Nemo judex in causa sua” (no one can be a judge in his own case) as casting doubt on the supposed self-pardon power.

Barrett was given another opportunity to demonstrate her integrity in an open letter signed by more than 80 Notre Dame faculty members urging her to withdraw from the nomination altogether because of what the academics called “the anti-democratic machinations driving your nomination.” Barrett was not asked about the letter during the hearings and has said nothing on the record even to indicate that she has read it. Suffice it to say that one way to prove her integrity would be to renounce the reward that Trump has offered her in a Faustian bargain.

Barrett Poses Risk to Rights, Public Health

           Judge Amy Coney Barrett appears to be on her way to becoming the next associate justice of the Supreme Court on the United States. If Republicans have their way, she may take her seat early enough to cast a decisive vote to throw out the Affordable Care Act and leave millions of Americans without health insurance in the midst of the coronavirus pandemic.

            The Court is currently scheduled to hear arguments in that case on Nov. 10, one week after the election. The Trump administration is supporting the argument by red states led by Texas that Congress effectively eliminated the act’s individual mandate in 2017 and for that reason the entire law must be thrown out.

            With 47 seats, Senate Democrats s may not have the votes to block or delay Barrett’s confirmation in either the Judiciary Committee or on the Senate floor, but they can use the confirmation hearings that begin on Monday [Oct. 12] to underline the risk that Barrett’s confirmation would pose to individual rights and to public health. Barrett has previously criticized Chief Justice Roberts for his pivotal vote in 2015 to uphold the act.

            In advance of the hearing, Republicans are playing down the issue that President Trump put at the top of his Supreme Court agenda: overruling the landmark abortion rights decision, Roe v. Wade. As one example, the Washington Post noted in a story [Oct. 9]  that Iowa’s Republican senator Joni Ernst described the chances of overturning Roe v. Wade as “very minimal” in a Sept. 28 debate with her Democratic opponent.

            The reproductive rights organization NARAL is emphasizing that in fact the anti-Roe v. Wade position is politically unpopular. Despite the anti-abortion lobby’s unceasing attacks on the 47-year-old decision by a 7-2 Supreme Court, most Americans do not want to see it overruled. In the most recent poll, NBC News found that 66 percent of Americans surveyed do not want to see the decision overruled and, in fact, that Republicans are “virtually split” with a bare 50 percent majority in favor of reversing the decision.

            Barrett, a member of Faculty for Life when she was a law professor at Notre Dame, has taken the minority position on this issue for years—for example, in a political advertisement in Indiana in 2006 that denounced “the barbaric legacy” of the decision and called for it to be overturned. Whether inadvertently or intentionally, Barrett omitted mention of having signed the advertisement.

Years later, however, Barrett soft-pedaled her stance somewhat in a speech at Notre Dame in 2013. "The fundamental element, that the woman has a right to choose abortion, will probably stand," she said. Three years later, she acknowledged the possibility of further restrictions on abortion rights. "I don't think abortion or the right to abortion would change,” she remarked in 2016. “I think some of the restrictions would change."

            As a federal appellate judge, Barrett dissented from a Seventh Circuit decision that struck down an Indiana law prohibiting abortions for the purpose of sex selection. Reproductive-rights groups always emphasize that provisions such as that one inevitably mean that the government gets to cross-examine a woman about her reasons for wanting to terminate a pregnancy. So much for the right to choose!

            Barrett, it must be remembered, has written that her notion of originalism overrides the legal principle of stare decisis—respect for precedent. “I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it,” Barrett wrote in a law review article in 2013.

            Senate Democrats can usefully remind Barrett of Chief Justice Roberts’ description of Roe v. Wade in his confirmation hearing as settled law and ask whether she agrees. Barrett is likely to evade the question, but Democratic senators may want to note that Louisiana and Texas both enacted laws that could have reduced the number of abortion clinics in each state to only one. Fortunately for access to abortion services, the Court struck down both laws by 5-4 votes; as Ginsburg’s successor, Barrett would provide a critical vote for upholding similar restrictions.

            In an alternate universe, the Republican senators who four years ago blocked Merrick Garland’s nomination to the Supreme Court eight months before the 2016 presidential election would be too embarrassed by the rank hypocrisy of pushing Barrett’s nomination barely one month before this year’s election. In this real world, however, Republicans have no principles and no capacity for shame.

            The Democratic vice presidential nominee, Senator Kamala Harris, raised this issue one last time in the vice presidential debate [October 7] by noting as historical precedent President Lincoln’s decision shortly before the 1864 presidential election to delay filling a Supreme Court vacancy until after the election. “American people are voting right now,” Harris said. “It should be their decision as to who should have a lifetime appointment to the Supreme Court.”

 In fact, a dozen polls indicate that most Americans want the vacancy to be filled by the winner of the 2020 presidential election. In that regard, Democratic senators should press Barrett very hard on whether she will recuse herself – as she ought to – from any litigation brought by her benefactor Trump to contest Nov. 3 election results.

In Texas, New Move on Voter Suppression

          In Texas, the state’s Republican governor Greg Abbott came up with a new technique of voter suppression last week [Oct. 1] by directing two of the state’s predominantly Democratic counties to reduce the number of drop-off boxes for voters to deposit absentee ballots in advance of Election Day.

            Abbott issued his proclamation two days after President Trump used the first presidential debate [Sept. 29] to repeat his call for supporters to assemble at polling places on Election Day, ostensibly to guard against voter fraud. The Texas governor similarly described his proclamation as an effort to “strengthen ballot security protocols throughout the state.”

            Two Democratic counties were immediately affected by Abbott’s order that all of Texas’s 250 counties limit the number of ballot drop-off boxes within their expansive borders. Travis County, which includes the state capital of Austin, had to eliminate three of the four drop-off boxes already in place; Harris County, which includes the nation’s third largest city, Houston, had to get rid of eleven of its twelve drop-off boxes.

Democratic officials in both counties immediately criticized Abbott’s move as amounting to voter suppression. Voting rights groups filed federal court suits the next day challenging Abbott’s proclamation as a violation of the federal Voting Rights Act.

            Texas now joins several other battleground states with litigation over actions being taken to ease mail voting in the midst of a pandemic that makes in-person voting hazardous to voters’ health. Two of those cases – one from Pennsylvania and another from Arizona -- are now at the Supreme Court, which divided along partisan lines in a Wisconsin case in April in blocking a federal court order opposed by GOP legislators to extend absentee ballot deadlines.

Republican officials waging those legal battles echo Trump’s unsubstantiated warnings about likely fraud with expanded mail voting. Federal judges, however, have generally dismissed the allegations and allowed election officials, for example, to extend deadlines for receiving ballots given the likelihood of delays in the mails.

             In the most recent ruling, a federal judge in Montana rejected an effort by the Trump campaign and GOP officials in the state to block the state’s 56 counties from conducting the Nov. 3 election by mail. In rejecting the suit, U.S. District Court Judge Dana Christensen, an Obama appointee who served as chief judge for seven years, noted that the GOP officials “were compelled to concede that they cannot point to a single instance of voter fraud in Montana in any election during the last 20 years.”

            In Texas, a spokesperson for Abbott was described by The Texas Tribune as failing to explain how multiple drop-off ballot boxes could lead to voter fraud. In Travis County, the county clerk Dana DeBeauvoir described Abbott’s proclamation as “a deliberate effort to manipulate the election.” In Harris County, the county’s chief executive Lina Hidalgo echoed that view. “This isn’t security, it’s suppression,” Hidalgo said.

            Trump carried Texas, with its 38 electoral votes, by a 9 percentage point margin in 2016. His Democratic opponent, Hillary Clinton, carried Harris and Travis counties by substantial margins. In the most recent polls, Trump leads the Democratic nominee, former vice president Joe Biden, by an average of 2.5 percentage points.

            With only one month before the Nov. 3 election, the federal court suits challenging Abbott’s order may not move fast enough to allow the two counties to re-establish some of the drop-off boxes that have been removed. The groups that filed the suits include the Texas and National Leagues of United Latin American Citizens, the League of Women Voters of Texas, and the Texas Alliance for Retired Americans.

            Also last week, Republican legislators in the key battleground state of Pennsylvania asked the Supreme Court to intervene to stop a decision by the state’s high court to count mail-in ballots received up to three days after Election Day. The GOP lawmakers who filed the application in Scarnati v. Boockvar on Monday [Sept. 28] contended that the state court’s decision, aimed at accommodating likely mail delays, intruded on the legislature’s authority to set election rules.

            Trump carried Pennsylvania with its 20 electoral votes by a 44,000-vote margin in 2016. Current polls show Biden with a 5.8 percentage point lead over Trump in the state. Pennsylvania is listed along with Michigan and Wisconsin as among the states crucial to Trump’s Electoral College victory in 2016 despite losing the nationwide popular vote by nearly 3 million votes.

            The Supreme Court took up another election-related case at the end of the week [Oct. 2] by agreeing to hear a plea by Arizona’s Republican attorney general to uphold two election laws struck down by a federal appeals court on the ground that they discriminated against minority voters. One of the laws requires election officials to discard ballots cast at the wrong precinct; the other makes it a crime for campaign workers, community activists, or others to collect ballots for delivery to polling places.

            In striking down the “ballot collection” law, the en banc majority of the Ninth U.S. Circuit Court of Appeals stated that there was “no evidence of any fraud in the long history of third-party ballot collection in Arizona.” The appeals court stayed its ruling; so the laws remain in effect for the Nov. 3 election. The justices’ decision to review the case, Brnovich v. Democratic National Committee, tees it up for oral arguments early next year and a decision by the end of June.