With Republican-controlled legislatures in many states moving quickly to cut back voting rights, especially mail-in balloting and voting before election day, three Supreme Court Justices on Monday sent a strong signal that these efforts may survive future court challenges. In arguing that the Court should now step in to resolve disputes that arose in the 2020 election, even though that election is over, the three suggested that the constitutional issues are too important to be left to the future.
While only three conservative Justices took public stands in the Court’s denial of review of two Pennsylvania appeals, they have three other conservative colleagues from whom they might attract enough votes to make a majority in the future, if – as seems almost certain – the same election disputes arise again.
The Court, of course, had the option of denying review of any election appeals, and to do so without comment or explanation, since the election results are now firmly settled – including the election of President Biden and the defeat of former President Trump. Speaking out, as the three did, clearly enhanced the importance of the issues, and likely will have the effect – intended or not – of emboldening GOP legislators at the state level who are now pressing to alter their states’ election procedures.
One of the three Justices, Clarence Thomas, wrote most forcefully and at greater length (11 pages), and used his opinion as a sharp critique of the potential for abuse in mail-in balloting – a practice that mushroomed across the nation in 2020, mostly in reaction to the pandemic and the threat it posed to crowds expected at polling stations on election day. In a separate, four-page opinion, Justice Samuel A. Alito, Jr., joined by Justice Neil M. Gorsuch, made some of the same arguments that Thomas had about the compelling need for the Court to resolve the core dispute in these two cases, and to do so before the next election is looming.
The key issue in the Pennsylvania cases was this: does the U.S. Constitution assign such a full role to state legislatures in deciding the rules for federal elections (for the presidency and for Congress) that there is no role for the state supreme courts to play in assuring that state election procedures satisfy the right to vote guaranteed by state constitutions?
A dispute between GOP legislators in Pennsylvania and the state Supreme Court arose over the question of whether mail-in ballots could be counted if they arrived with election officials after election day. State law passed by the legislature said no, but the state’s highest court allowed such ballots to arrive up to three days after election and to be counted as valid if there was no proof that they had been mailed after election day.
That particular dispute mushroomed into a major constitutional battle, over the meaning of the part of the federal Constitution that assigns state legislatures the task of controlling federal election systems.
The three Justices made it clear Monday that they are quite sympathetic to the idea that the national Constitution gives state legislatures vast discretion as to how to devise election procedures, and that power is not to be second-guessed by state courts, even when the courts are applying the mandates of state constitutions.
That is an idea that traces its origins back to an 1892 Supreme Court decision that followed in the wake of the seriously disputed presidential election of 1876. And it is an idea that several members of the Court expressed in 2000, when the Justices brought an end to the disputed presidential election of that year between Republican George W. Bush and Democrat Al Gore. (Justice Thomas cited both of those decisions in his opinion Monday.)
If the three Justices who dissented from the denial of review in the two Pennsylvania cases had attracted one other vote, the Court could have moved on to decide the constitutional question. It takes only four votes among the Justices to grant review of a case.
In earlier, preliminary action by the Court dealing with the Pennsylvania controversy, Justice Brett M. Kavanaugh had joined with the three others who spoke out Monday in voting to temporarily block that state Supreme Court ruling. However, to block that ruling, it would have taken five votes. At the time, there were only eight Justices, following the death of Justice Ruth Bader Ginsburg, and the other four chose not to support such an order against the state tribunal. At that time, the newest Justice, Amy Coney Barrett, had not yet joined the Court.
It would appear that both Justices Kavanaugh and Barrett – both quite conservative — might be likely supporters, in the future, for the idea that state legislatures should be left with the widest discretion to act in passing election procedures for federal offices. It seems that even Chief Justice John G. Roberts, Jr., could be drawn to that view, too.
The other three Justices, liberals Stephen G. Breyer, Elena Kagan and Sonya Sotomayor, have been supportive of the effort to expand voting rights as the Pennsylvania court did.
The fact that the Court on Monday fell just one vote short of enough to grant review of the Pennsylvania controversy probably meant that the Chief Justice and Justices Kavanaugh and Barrett were reluctant to prolong the national conversation over former President Trump’s claim that the election had been rigged and stolen from him. The Court was voting on the issue, of course, with the nation still reeling from the violent attack on the Capitol by Trump followers on January 6, the day that Congress had assembled to make final the presidential election outcome.
Although outsiders have no way of knowing what the Justices said to each other privately when it came time to vote on the Pennsylvania cases, but it is easy to imagine that the searing controversy stirred up by the former President was at the heart of it.