While the media has been obsessed with a fly on the head of Vice President Mike Pence, some vital issues are being addressed at the U.S. Supreme Court that will affect the outcome of an election rapidly closing in on the American people. In the last week, there has been a good deal of action at the Supreme Court on voting rights. The issue appears to be flying under the radar, but it should be highlighted for voters.
The High Court agreed to hear both out-of-precinct voting and ballot harvesting cases this term, but these are long-ball issues that will not be decided before November. However, several crucial questions lie at the feet of the justices which need their attention now. Thus far, the Supreme Court has handled emergency petitions from Maine, South Carolina, and Montana, whose rulings will affect voting this cycle – and there are more on the horizon.
LKD: Scott, let’s tackle these judicial matters this way. First, the emergency orders that have been issued thus far that pertain to the voting that will take place on November 3. Second, future cases the Supreme Court will likely have to consider regarding Election 2020 and third, the cases that SCOTUS agreed to take up this term that may impact future elections.
Pertaining to the elections at hand, what lies before the court right now and what, if any, rulings regarding this voting cycle have been handed down recently?
SDC: Single justices are assigned to catch cases from specific regions of the country regarding emergency petitions, and the court dealt with a flurry of them this week. In South Carolina, Democrats sued to get the courts to declare witness requirement for absentee ballots too burdensome and unconstitutional due to the COVID–19 pandemic. They won at the district court and the 4th Circuit Court of Appeals, which granted and upheld a preliminary injunction against enforcing the law. In ruling for Republicans, the Supreme Court did not address the constitutionality of the restriction – they simply ruled that the injunction must be lifted. The case will now return to the lower court for a full trial. Justice Kavanaugh, who wrote separately to discuss his reasoning, said: “[T]his Court has repeatedly emphasized that federal courts ordinarily should not alter state election rules in the period close to an election.”
The Supreme Court on Tuesday rejected a plea by Republicans in Maine to block the state from using ranked-choice voting in the upcoming presidential election. Ranked-choice voting is a method in which people list candidates by order of preference rather than just filling in one circle. Only four electoral votes are at stake in Maine, which are split based on congressional district guidelines. An article in The Atlantic noted that ranked-choice voting could have “huge consequences” in a presidential race if the electoral count is close. The Atlantic clarified this by pointing out:
“In 2016, Clinton carried Maine by just three points, but she won just less than 48 percent of the vote in the state – a plurality but not a majority. If ranked-choice voting had been in place at the time, it’s possible the state could have gone to Trump. The format works like an instant runoff: If no candidate receives more than 50 percent of the first-choice votes, the candidate with the least support is eliminated. Whomever that person’s voters picked as their second choice is then added to the tallies, and the process repeats until one candidate reaches a majority.”
Justice Breyer issued the rejection to Granite State Republicans. His ruling means Maine will use this method of voting in November.
On Thursday, the Court rejected another emergency request, this one from Montana Republicans. The GOP tried to block rules permitting county election officials to choose whether to send mail-in ballots to all registered voters. Justice Elena Kagan rejected this application without comment, which means the mail-in balloting to every registered voter in Montana stands.
LKD: Okay, can you outline future cases the U.S. Supreme Court will most likely have to consider regarding Election 2020?
SDC: Indiana, Pennsylvania, and Wisconsin, for instance, all have contested issues regarding when election officials must stop counting mail-in ballots. The DNC, with state-level Democrats, sought new rules for this election, imposed by judges that extend the dates for votes to be valid. Those cases have now seen action in the courts of appeals, and if history is our guide, the losers will appeal to the Supreme Court in short order.
LKD: So, what cases are before the court right now regarding future elections?
SDC: The Supreme Court accepted two big election cases that will be argued together: Arizona Republican Party v. Democratic National Committee and Brnovich v. Democratic National Committee. The oral arguments for these cases haven’t been scheduled yet, so we know any decision will come well after the elections. The cases do have the potential to make a significant impact on future elections, however.
Who may submit the ballot of another person? The Court will decide if a law banning ballot harvesting, the practice of allowing political operatives and other outsiders to collect voters’ ballots and submit them to polling stations wholesale, is constitutional. Also, the Court will look at whether banning voting outside an assigned precinct is legal. This suit was brought by the DNC, which claims the restrictions are racially discriminatory.
LKD: Thank you, Scott.
Any way you cut it, the courts and especially the U.S. Supreme Court are likely to play a big role this election season. However, the goal should always be how best to let the American people’s voices be heard through their votes, as outlined in our founding documents.