On the night of October 28, the United States Supreme Court issued orders in election-related cases brought by Republicans in two states. Justice Amy Coney Barrett was not included in either one, and the results both favored Democrats. The Court denied a request from Pennsylvania Republicans to expedite a hearing on their challenge to a recent extension to ballot counting in their state. It also ruled against a request from North Carolina Republicans who asked the Court to order the State Board of Elections to follow the law and not unilaterally extend vote deadlines.
As Liberty Nation reported, the Pennsylvania Supreme Court re-wrote the state election law ballot deadline to respond to the challenges of voting during the pandemic. The State Republican party sued, asking for an emergency order from the U.S. Supreme Court, to prevent the changes from being implemented. The Court declined to issue the injunction, ruling in a 4-4 tie. The Republicans then came back to the Supreme Court, this time asking not for an emergency declaration, but an expedited hearing on the merits, before election day, and with the prospect of Justice Barrett on the bench.
The Supreme Court declined to give the hearing. Justice Alito was joined by Justices’ Thomas and Gorsuch in his opinion. He said:
“[T]he Pennsylvania Supreme Court’s decision calls out for review by this Court—as both the State Republican and Democratic Parties agreed when the former applied for a stay. But I reluctantly conclude that there is simply not enough time at this late date to decide the question before the election.
That does not mean, however, that the state court decision must escape our review. Although the Court denies the motion to expedite, the petition for certiorari remains before us, and if it is granted, the case can then be decided under a shortened schedule.”
The Court announced that additional opinions in the case may be coming, and that “Justice Barrett took no part in the consideration or decision of this motion.” It did not say why the newest justice did not participate in this ruling, nor the Court’s ruling on the North Carolina case.
In North Carolina, the State Board of Elections implemented changes to election law in direct contravention of state statute, allowing ballots to be counted nine days after the election. They claimed the right to do so under emergency authority. What emergency? The pandemic? The state legislature has had months and months to plan for an election held in the midst of the coronavirus, and has passed new laws to accommodate the situation. How is it an emergency then, if the legislature addressed the issue months ago?
In dissent of the Court’s decision to deny the Republican application, Justice Gorsuch wrote, “the General Assembly has long known about the pandemic’s challenges and expressly prepared for them.” Justice Alito and Justice Thomas voted with Gorsuch for the injunction and to stop the last-minute changes.
State and Federal Decisions
On Monday, October 26, the Supreme Court upheld a decision from the 7th Circuit Court of Appeals. In that case, the appellate court overturned a federal district court order which re-wrote the election deadline in Wisconsin. The appeals court correctly noted that the Supreme Court has held that last-minute changes to election law are to be avoided absent compelling legal reasons, and a 5-3 vote upheld it. Those changes were made by a federal judge, however, and the Pennsylvania and North Carolina changes were made by a state court and a state agency, respectively, and that seems to have made all the difference.
Many are still wondering what Justice Barrett would and will do and when she will start participating in the work of the Court.
For his part, Justice Roberts seems happy to let state authorities do what they please but is willing, if not eager, to brush back attempts at members of his federal judiciary to make last-minute changes to election laws.
Read more from Scott D. Cosenza.