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.