Republican-controlled legislatures in battleground states are likely to play a deciding role in any post-Election Day legal disputes.
It's hard to anticipate just what a post-election legal fight will involve. However, many pre-election lawsuits to reach the Supreme Court have involved a particular fault-line: On the one side is a state legislature, which sets the rules and procedures for the election; and on the other is a state court, which relaxes or alters those procedures, citing other state law sources and the coronavirus pandemic as justification. If that pattern holds, President Donald Trump has reason for optimism.
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So far, a short-handed Supreme Court has sided with state judges in such cases, allowing their late-breaking adjustments over the objections of GOP lawmakers and the Trump campaign. Justice Amy Coney Barrett, however, may hold a fifth vote in favor of the GOP-controlled legislatures. Republicans control both legislative chambers in such critical states as Arizona, Florida, Pennsylvania, North Carolina, and Wisconsin.
One emergency election appeal that reached the Supreme Court from Pennsylvania illustrates the pattern, possibly presaging post-election events. In that dispute, the state legislature set an 8:00 p.m. Election Day deadline for all mail-in ballots. A Pennsylvania state court extended that deadline by three days, invoking a provision of the state constitution that says elections should be conducted in a manner that protects voting rights "to the greatest degree possible."
In a short separate statement, Justice Samuel Alito lamented that the original Election Day deadline had been displaced. He pointed to a section of the Constitution that provides federal election rules "shall be prescribed in each State by the Legislature thereof."
"The provisions of the federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature," Alito wrote.
Justice Brett Kavanaugh took the same position in an emergency appeal from Wisconsin decided two days earlier, making four justices who think the state legislatures ought to have the upper hand.
Had Barrett been on the Court in late September, she might have provided a fifth vote to maintain the original Election Day deadline. Her participation in a future case could mean that election rules written by GOP lawmakers will determine scuffles over recounts or tardy absentee ballots.
State officials in Pennsylvania indicated they will segregate late-arriving mail-in votes from all other ballots in case they are the subject of future lawsuits.
Chief Justice John Roberts has thus far voted with the liberal wing and sided with state judges. In a terse, one-paragraph opinion from late October, Roberts said state judges should have the final word when applying state constitutions to election rules. Speaking for the three liberal justices, Justice Elena Kagan said the courts ought to supervise state legislatures writing voting laws to protect constitutional rights.
"If there is one area where deference to legislators should not shade into acquiescence, it is election law," Kagan wrote. "For in that field politicians' incentives often conflict with voters' interests—that is, whenever suppressing votes benefits the lawmakers who make the rules."
For her part, Barrett is facing intense pressure to recuse herself from any case touching the election, and her decision in the matter is currently unclear. Democrats say President Donald Trump has created the appearance of bias by connecting her nomination with the prospect of a contested election.
A recusal motion greeted the new justice just hours into her tenure. Lawyers representing the Luzerne County Board of Elections in the emergency Pennsylvania appeal said a 2009 case required her recusal.
In that case, a state court judge was deciding on a case in which his top campaign contributor had a multimillion-dollar stake. A 5-4 Court said the Constitution required the judge's recusal because the donor's significant influence in placing the judge on the court created "objective and reasonable perceptions" of bias. The Luzerne County council subsequently voted to withdraw the motion.
Barrett managed to duck the Pennsylvania appeal given the timing, and she did not participate in a conference the justices held Friday to discuss pending petitions. A Court spokeswoman said Barrett has been using her time to get up to speed on the cases the justices will hear in the coming days, which include weighty disputes over health care, LGBT rights, and religious freedom. Whether or not the calendar may again be an ally for Barrett if a politically fraught appeal reaches the justices is unclear.
While only two members of the Bush v. Gore Court are still on the bench, several of the justices are intimately familiar with contested elections. Chief Justice John Roberts and Associate Justices Brett Kavanaugh and Amy Coney Barrett did legal work for the Bush campaign during 2000's infamous Florida recount.