The Supreme Court ruling on ballot deadlines may be more of a reprieve for Democrats than a win
In a surprising move, and after a three-week delay, the justices split 4-to-4 in declining to intervene — a development that let the Pennsylvania Supreme Court ruling stand. Chief Justice John G. Roberts Jr. sided with the three remaining liberal justices. In a one-line order, the four other conservatives said they would have halted the state court order from taking effect.
So Democrats win, for now. But their underlying situation is bleak. The good outcome for Democrats in Pennsylvania may not last even there. The result is likely to be less favorable as the justices consider cases from other key states. And the grim reality, from Democrats’ point of view, is that at least four justices — and probably soon a fifth — embrace a textualist jurisprudence unsolicitous toward protecting voting rights.
In the Pennsylvania case, the justices didn’t uphold the state court ruling — they just split on whether to exercise their emergency power to stop the extension from taking effect. The impending arrival of a ninth justice, with the confirmation of Judge Amy Coney Barrett, could change that situation. It’s not hard to imagine the case making its way back up to the high court, before or after Election Day, and Democrats losing.
Imagine that ballots arriving at local election boards during the three-day window after Nov. 3 end up making the difference in a close race in Pennsylvania. If so, Republicans could go back to court to challenge the results. Nothing in the Supreme Court’s action would prevent it from eventually considering the case if and when that happens.
Indeed, it’s possible Republicans could mount a challenge to the deadline extension in federal court even before Nov. 3 — possibly with Barrett in place and ready to weigh in. The chances are good that she would side with the four conservative justices who already voted to halt the extension. That would make the chief justice’s position irrelevant.
In fact, it’s not at all clear that the chief justice himself would rule for the three-day extension. Roberts vigorously dissented in a 2015 case upholding an Arizona referendum that assigned the authority over redistricting to a nonpartisan commission instead of the state legislature.
The underlying issue in that case was the same as in Pennsylvania: the power the Constitution gives to state legislatures to decide how to conduct elections. The majority in the Arizona case interpreted “legislature” to mean “people,” and Roberts was having none of it. “The Court’s position has no basis in the text, structure, or history of the Constitution, and it contradicts precedents from both Congress and this Court.”
So Democrats shouldn’t count on Roberts’s vote if the deadline extension matters and the case makes its way back up to the court.
More ominously, they shouldn’t count on the ability to repeat the Pennsylvania outcome elsewhere. The question of extending absentee and mail-in ballot deadlines is being litigated in the presidential battlegrounds of Wisconsin, North Carolina and Michigan. Wisconsin is already at the U.S. Supreme Court on multiple emergency motions, including one from the Democrats themselves. And the Wisconsin case is different from Pennsylvania’s because Democrats there lost in the lower court. That means another 4-to-4 tie would go against them this time around.
In April, as Wisconsin’s primary was upended by the pandemic, the Supreme Court, splitting 5-to-4, overturned a lower court order that allowed ballots cast after Election Day to be counted because voters hadn’t received them in time. And that was a court that still included Justice Ruth Bader Ginsburg.
A half-year later, the court’s expectation that state statutes are to be implemented as written, even in the midst of a virulent pandemic, seems even more pronounced — and potentially growing.
Anywhere a court might be willing to relax statutory strictures in favor of enfranchising voters, this leniency is likely to be subject to a new U.S. Supreme Court veto. That might be just what President Trump is hoping for to save him from defeat.
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