The Supreme Court has issued a series of confusing rulings on the upcoming election, with
Chief Justice Roberts being the wild card in the process.
In the recently decided case of Republican Party of Pennsylvania v. Boockvar, Roberts sided with the three activist Democrats on the Supreme Court to allow Pennsylvania’s Democrats to count ballots received up to three days after Election Day – even though Pennsylvania law allows only ballots received on or before Election Day to be counted.
In that case the Pennsylvania Supreme Court also said that ballots lacking a clear postmark could be counted unless there was evidence that they were mailed after the polls closed.
What Roberts did in Bookvar was make postmarks the new “hanging chads” of contested elections, while giving potential election manipulators a clear roadmap of how to go about getting their fraudulent ballots counted.
However, the Supreme Court ruled Monday that mail-in ballots in Wisconsin could be counted only if they are received by Election Day.
Democrats in the state had asked the federal court to allow the counting of ballots that arrive up to six days after Election Day if they were postmarked by November 3.
Unlike the Pennsylvania order last week, the Wisconsin order Monday concerned a ruling from a lower federal court, not a state court, and Chief Justice John Roberts said that made a difference.
A federal district court in Wisconsin had sided with the Democrats to allow mail-in ballots to be received up to six days after Election Day, but an appeals court blocked that order, and the Supreme Court upheld the block.
"Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin," Roberts wrote.
If you are confused, so are many others, but Roberts’ point that federal courts should not jump in to overturn or modify otherwise valid state election laws in the middle of an election is a hopeful sign.
But what about state courts, as Roberts’ decision to let the state court ruling stand in Republican Party of Pennsylvania v. Boockvar seemed to imply they have unlimited, even arbitrary power to decide election matters in their respective states?
Justice Brett Kavanaugh seemed to shoot that idea down. "Under the U.S. Constitution, the state courts do not have a blank check to rewrite state election laws for federal elections," Kavanaugh wrote in a footnote of his concurring opinion.
Kavanaugh referenced Bush v. Gore, the court's opinion that decided the 2000 election. Kavanaugh picked up on the reasoning of then-Chief Justice William Rehnquist in a concurrence that garnered the votes of two other conservative justices -- the late Justice Antonin Scalia and Justice Clarence Thomas.
"The text of Article II means that the 'clearly expressed intent of the legislature must prevail' and that a state court may not depart from the state election code enacted by the legislature," Kavanaugh wrote.
In the Wisconsin case Monday, Kavanaugh wrote to explain why he agreed with the court's 5-3 majority to block a federal district court's ruling that would have extended the deadline for the receipt of absentee ballots in Wisconsin amidst the pandemic.
For important reasons, most States, including Wisconsin, require absentee ballots to be received by election day, not just mailed by election day. Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election. And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter. Moreover, particularly in a Presidential election, counting all the votes quickly can help the State promptly resolve any disputes, address any need for recounts, and begin the process of canvassing and certifying the election results in an expeditious manner. See 3 U. S. C. §5. The States are aware of the risks described by Professor Pildes: "[L]ate-arriving ballots open up one of the greatest risks of what might, in our era of hyperpolarized political parties and existential politics, destabilize the election result. If the apparent winner the morning after the election ends up losing due to late-arriving ballots, charges of a rigged election could explode." Pildes, How to Accommodate a Massive Surge in Absentee Voting, U. Chi. L. Rev. Online (June 26, 2020) (online source archived at www.supremecourt.gov). The "longer after Election Day any significant changes in vote totals take place, the greater the risk that the losing side will cry that the election has been stolen."
As Ariane de Vogue, CNN Supreme Court Reporter noted, Kavanaugh said he thought the district court changed the state's rules too close to an election and that courts should defer to state legislatures to address health concerns about Covid-19. He also said he thought that Wisconsin's deadline is the same as that of several other states and is "reasonable given the all the circumstances.
The Supreme Court has yet to resolve how far state courts may go to change election rules put in place by state legislatures and as of right now, beyond the date of the required meeting of the Electors (this year December 14, 2020) there is no national deadline for the post-election counting of ballots or resolution of recounts.
Chief Justice John Roberts
Republican Party of Pennsylvania v. Boockvar