But those lawsuits — every one seeking to restrict who can vote, make votes more difficult to cast and keep states from counting as many votes as possible — are already coming. They will continue after Election Day.
And the Supreme Court just showed us that it will probably be there to put a thumb on the scale for the GOP.
That’s not all. The legal ideas now being formulated could shape our elections long past this November.
On Monday, the court turned back a lawsuit by Pennsylvania Republicans challenging a ruling by the state’s Supreme Court, which said that election officials must accept mail ballots received up to three days after Election Day. The justices did not explain why they declined to hear the case.
But they did say that four of them — Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh — would have granted a stay. Because there was a 4-4 tie, Pennsylvania Democrats prevailed, and the votes can be counted.
But if and when Republicans confirm Amy Coney Barrett, there will be no more 4-4 ties. And the fact that the court’s four most conservative justices may have been inclined to rule with Pennsylvania Republicans suggests that they are embracing a radical reimagining of the court’s role in determining voting laws for every state in the country — one that could help Republicans maintain minority rule even as they lose support among the American public.
To understand why, we have to know a bit about how election law works. The Constitution does not include a right to vote, but 49 of the 50 state constitutions do. (Arizona’s is the exception.) What it does say is that state legislatures determine the manner of appointing presidential electors (almost all states do so by statewide popular vote) and determine the “times, places, and manner” of congressional elections.
The key question here is whether, when the Constitution mentions state legislatures, it should be understood as referring only to the institution of the legislature itself, or to a state’s whole lawmaking process.
If it means only the legislature itself, the Supreme Court could potentially use that interpretation to invalidate whatever a state constitution says about voting, strike down the power of a governor to veto voting regulations passed by the legislature or nullify ballot initiatives on voting passed by the voters themselves.
The Pennsylvania GOP argued essentially that because the U.S. Constitution says that the legislature determines voting laws for federal elections, a state supreme court has no right to weigh in, even when it’s ruling on how state law or the state constitution applies.
In this case, it would mean that the Pennsylvania Supreme Court can’t be the judge of what the Pennsylvania state Constitution says when it comes to federal elections, because the state legislature’s power is almost absolute.
“I think there’s good reason to believe, and the 4-4 vote here confirms that,” Richard Pildes of New York University Law School told me, that soon there could be “a majority on the court that would endorse what’s called the ‘independent legislature’ doctrine.”
And this conservative Supreme Court majority — which is about to get even more conservative — has almost never met a voting restriction it didn’t like. Sweeping voter purges, discriminatory ID requirements, partisan gerrymandering — whatever Republican legislatures have come up with, this court has looked kindly on.
Among other things, in the future it could strike down independent redistricting commissions, which are now used in numerous states (California, Arizona, Washington, Idaho, Colorado, Minnesota and Michigan) to draw congressional district lines, because it’s not the “legislature” determining them.
In 2015, the Supreme Court upheld Arizona’s commission, which was created by voter initiative. But the vote was 5-4, with Anthony M. Kennedy joining the court’s liberals. Chief Justice John G. Roberts Jr. dissented, Kennedy was later replaced by Kavanaugh, and Amy Coney Barrett is soon to join the court.
If they lean on a strict interpretation of the word “legislature,” the Supreme Court could rule that, for instance, voters couldn’t pass an initiative changing rules for congressional primaries. Given the conservatism of the court, it’s not hard to imagine them ruling for Republicans in case after case.
But with only two weeks to go, “What we’re seeing now is courts starting to shut down further changes this close to the election,” Pildes says. That’s mostly to Republicans’ benefit, since most of the cases involve Democrats seeking to adjust requirements on things such as absentee ballots amid the pandemic.
But the post-election conflict will probably see a wave of new lawsuits over which ballots are counted.
"Given the issues that inevitably surround absentee ballots,” Pildes says, including questions of whether a vote should be discarded if every instruction wasn’t followed perfectly, “it wouldn’t be surprising to see the Supreme Court get involved.”
That’s where the pressure will really intensify. “The court still has an opportunity to protect its institutional credibility,” Wendy Weiser, director of the Democracy Program at the Brennan Center for Justice, told me, and “at least some of the justices must recognize that.”
But retaining that credibility could well mean saying no to the Republican Party. Which they haven’t been inclined to do up until now.