The short answer is that an intervention by the Supreme Court to decide the presidential election is still extremely unlikely — but if the extremely unlikely happens, there’s great reason to be worried about the court’s protection of voting rights and the integrity of the vote.
As I have been watching all the election litigation as it works its way up and down the courts, I did not expect the Wisconsin ruling to be a major one. The Supreme Court had sent a consistent signal before deciding this case that federal courts should not be easing voting rules even during the pandemic and that there should be deference to state rules. A federal-district court had extended the deadline for the receipt of absentee ballots in Wisconsin because of delays in delivering mail during the pandemic, but the U.S. Court of Appeals for the 7th Circuit, following the Supreme Court’s lead, reversed that order. Democrats and voting rights groups, inexplicably thinking they would do better before the voter-hostile Supreme Court, took the case up and lost Monday night.
So the result — another 5-3 split along party and ideological lines, with conservatives on the court once again siding with the state against those expanding voting rights — was no surprise. The court did not issue a majority opinion, but it issued 35 pages of individual opinions for the justices, and Kavanaugh’s opinion has gotten the most attention. That one did have some surprises.
Kavanaugh’s opinion advanced a controversial theory about near-absolute power of state legislatures to set rules in federal elections. It also was sloppy in talking about facts and the law, and it echoed Trump’s false talking points about the perils of voting by mail.
Let’s start with the point about legislative power, which could be key to any potential post-election dispute. Under Kavanaugh’s reading of the Constitution, which was echoed by Justice Neil M. Gorsuch in his separate opinion, state legislatures have almost absolute power to set the manner for conducting presidential and congressional elections (subject to congressional override for congressional elections).
Kavanaugh cited a case that came to the Supreme Court during the disputed 2000 presidential election before Bush v. Gore — Bush v. Palm Beach County Canvassing Board — as standing for the proposition that state legislatures have this power — negating the power of state courts to expand voting rights under state constitutional provisions that protect the right to vote. As law professor Justin Levitt pointed out, though, Kavanaugh was wrong: The Supreme Court in the Palm Beach case unanimously raised but did not resolve that question. Kavanaugh further embraced this theory as advanced again by then-Chief Justice William H. Rehnquist in Bush v. Gore itself, but that was an opinion joined only by Justices Antonin Scalia and Clarence Thomas.
This theory would matter if, say, Pennsylvania or North Carolina were having a dispute about a recount in which Biden was behind and the state was running out of time to resolve disputes over the ballots. Both states have Democratic-majority state supreme courts, which could order rules for resolving these disputes consistent with their state constitutions but against the wishes of the states’ Republican-dominated legislatures. The conservatives on the court could embrace Kavanaugh’s version of Rehnquist’s Bush v. Gore theory and say that the state court’s changes to allow a full vote count were impermissible, stopping the count.
And although the Supreme Court deadlocked 4-4 on a similar issue last week out of Pennsylvania, with new Justice Amy Coney Barrett seated the court could now be 5-4 on this issue, even if Chief Justice John G. Roberts Jr. does not buy into the theory of broad legislative power endorsed by Kavanaugh and Gorsuch. There’s even a small chance the court will reconsider last week’s ruling in the Pennsylvania case now that Barrett has been confirmed.
Even putting aside the question about the power of state legislatures, there are further reasons to worry about Kavanaugh, a veteran of the Bush side in Bush v. Gore, in any future election law dispute. He is usually a careful analyst of legal issues, but this election law opinion was sloppy, much like the unsigned opinion (that I suspect he also wrote) in the RNC v. DNC case about deadlines in Wisconsin’s April primary. Aside from misstating the holding in the Palm Beach case, Kavanaugh mischaracterized an article by professor Richard Pildes about whether deadlines should be extended for receipt of ballots in light of the pandemic. And he mischaracterized how absentee ballot counting works.
Kavanaugh suggested without evidence that there would be a problem if voting results were not final on election night and results of the election could “flip” to another candidate, even though vote totals are never final on election night and require weeks to count. As a veteran of Bush v. Gore, Kavanaugh surely knows this; he may have even been involved in efforts in the weeks after the vote took place in Florida in 2000 to make sure that late-arriving military and overseas absentee ballots would be included in the state’s vote totals. The statement about vote totals this fall was unnecessary to his legal argument, and it served only to echo Trump’s false talking points about mail-in ballots.
The overall tenor of Kavanaugh’s opinion was not only dismissive of voting rights, but it also appeared to suggest that decisions to limit counting and enfranchisement are constitutionally mandated. If Barrett does not recuse herself from election disputes next month, there’s every reason to worry that a 5-4 court could interfere in the election to help Trump if a case that might swing the outcome gets before the court.
So why not panic about all of this? Mainly because, as both Jonathan Lai and Greg Sargent explained on Tuesday, the chances of the election being decided by the Supreme Court are very slim. Biden appears comfortably ahead in the polls; it is far from likely that the election would come down to Pennsylvania — or, even if it did, that Pennsylvania will be within the margin that litigation of the election could swing. The result would have to be super close in both the electoral college and popular vote in the state pivotal for the electoral college outcome for a court case to be a plausible way to contest the election. And even then there may be reasons — not the least of which is the legitimacy of the Supreme Court itself and of its newest justice, who already took her seat under circumstances that left Democrats howling — that the court would seek to avoid deciding the outcome of the election. It could instead come down to a resolution of disputes by Congress, which could well be in Democratic hands by the time electoral college votes are counted in January.
Looking beyond this election, though, it is hard to escape the fact that the Supreme Court is poised to allow Republican states to engage in all manner of voter suppression in the name of protecting the rights of state legislatures. This is true not just in election contests but in other cases that raise issues under the Voting Rights Act and the Constitution. That is something to panic about. But perhaps for everyone’s sanity we can put off worrying about that until after we get through the election.