The Supreme Court consistently upholds states’ voter suppression schemes—stringent ID laws, extreme partisan gerrymandering, racist redistricting, limits on voting by mail—despite clear evidence of disenfranchisement. The court has rolled back long-standing federal protections for equal suffrage by dismantling the Voting Rights Act’s most important provision, spurring mass poll closures, voter purges, and cuts to early voting that disproportionately affect minority communities. SCOTUS did all this in the name of states’ rights, shielding states’ election laws from the overreaching arm of the federal government. These decisions rested on the principle that federal courts should defer to states’ judgments about how to run elections.
But there is now a growing movement within the federal judiciary that would turn this principle into a one-way ratchet. Conservative judges have begun to argue that federal courts must stand down when states suppress voting rights—and intervene when states try to expand them. These judges claim a constitutional obligation to overrule a state’s own determination that voting should be easy, safe, and reliable during a pandemic. And they seem to be advancing this theory now because they know they have a receptive audience in the U.S. Supreme Court.
The most explicit judicial endorsement of this attack on federalism came Tuesday in an order from the U.S. Court of Appeals for the 4th Circuit. By a 12–3 vote, the 4th Circuit allowed North Carolina to accept mail-in ballots that arrive up to nine days after Nov. 3. Three conservative judges dissented in an opinion that is rooted in bizarre hypotheses rather than precedent. This trio alleged that federal courts have a constitutional duty to guess how a legislature would like to run an election, then impose its conjecture upon the state—even when the state itself disagrees.
In Tuesday’s case, three judges pushed this theory in an effort to throw out thousands of ballots in North Carolina. Like many other states, North Carolina counts mail-in ballots that arrive shortly after Election Day. A state statute establishes a three-day grace period at a minimum, meaning ballots that arrive within three days of Nov. 3 must be counted. But state law also allows the North Carolina State Board of Elections to extend this period during a “natural disaster.” Voters sued the board in August, arguing that the pandemic qualifies as a “natural disaster” requiring the extension of the grace period. The board eventually entered into a consent decree with the state court, agreeing to count ballots received up to nine days after Nov. 3.
So far, so normal. These disputes happen all the time, because state election laws don’t implement themselves. After the legislature passes election regulations, it falls upon others to interpret and execute them. In most states, the executive branch enforces the law and must deal with ambiguities and unexpected challenges in the run-up to an election. Some states empower the secretary of state to take the lead. Others direct the board of elections to handle these problems. The state judiciary must ultimately decide whether the executive has complied with the state’s laws and constitution. This process played out smoothly in North Carolina: The legislature gave the state Board of Elections authority to extend the ballot deadline. The board did exactly that. And the state courts approved its actions.
It is encouraging that 12 members of the 4th Circuit saw nothing wrong in any of this. It was so standard and aboveboard, in fact, that three conservative members of the court appointed by Donald Trump refused to block the deadline extension. But three other conservative judges—J. Harvie Wilkinson, Paul Niemeyer, and Steven Agee—dissented. In an angry opinion written by Wilkinson and Agee and joined by Niemeyer, this trio accused the board (and, by extension, the state judiciary) of unconstitutionally usurping the legislature’s constitutional powers. Specifically, the dissenters claimed that the board violated the U.S. Constitution’s elections and electors clauses, which allow “the legislature” of each state to determine the “manner” of federal elections.
There are two problems with this argument. The first is that the U.S. Supreme Court has consistently read the word legislature to encompass other bodies that exercise “legislative power.” So it’s simply incorrect to declare, as the dissenters did, that only the North Carolina General Assembly holds “the power to set the rules for federal elections.” It is perfectly acceptable, as a matter of federal constitutional law, for another component of the state government to modify the rules.
The second problem is more fundamental: When the board lengthened the ballot deadline, it wasn’t contradicting the legislature but implementing its instructions. The North Carolina General Assembly empowered the elections board to bump back this deadline in the face of a “natural disaster.” A bipartisan majority of the board saw the pandemic as a natural disaster and exercised its powers under the law. A state court signed off on this modification, indicating that the board acted within the powers delegated to it by the legislature. It’s a bedrock rule that state courts have final say over the meaning of state laws. Thus, the federal judiciary has no authority to second-guess its conclusions.
To get around this roadblock, the dissenters point out that Tim Moore, speaker of the North Carolina House of Representatives, and Phil Berger, President pro tempore of the North Carolina Senate, disagree with the board’s interpretation of the law. But state law does not allow Moore and Berger to represent the legislature in this kind of litigation; they do not speak for the General Assembly in any legal sense. Even if Moore and Berger were allowed to represent the General Assembly, why should they get final say over the meaning of state law? The North Carolina Constitution assigns that function to the state judiciary. Federal courts don’t get to overrule a state court’s eminently reasonable interpretation of election laws passed by the legislature.
The dissenters’ position isn’t just contradictory; it’s a recipe for astounding infringements upon state sovereignty by federal courts. Wilkinson, Agee, and Niemeyer claim that federal judges should decide the true meaning of election laws, ignoring the state judiciary if necessary. Federal judges should then assess whether those tasked with enforcing these laws—here, the elections board—have followed them closely enough. If the judges decide their own subjective sense of a legislature’s intent has been flouted, they must intervene and impose their own preferences upon the state.
This approach defies the U.S. Supreme Court’s repeated warnings against federal courts’ intervention in state elections, especially on the eve of voting. The court’s “Purcell principle” holds that federal judges shouldn’t alter voting procedures just before an election. This rule applies exclusively to federal courts. Yet the dissenters falsely proclaim that the Purcell principle also applies to state courts and agencies, like the North Carolina elections board. If that were true, then no governor, secretary of state, elections board, or state court could modify the law to protect voting rights during, or just before, an election. The dissenters would transform a rule designed to keep federal courts out of elections into one that forces federal courts into elections whenever a state court or agency expands voting rights.
Why did Wilkinson, Agee, and Niemeyer embark upon this precedent-shattering joyride? Presumably because four justices of the Supreme Court signaled on Monday that they’re already in the driver’s seat. The court’s four ultraconservatives voted to block a Pennsylvania Supreme Court decision that extended the deadline for mail-in ballots. They failed by one vote when Chief Justice John Roberts refused to go along. After Amy Coney Barrett is confirmed, however, these four conservatives may have a fifth vote to crack down on state efforts to help everybody vote.
In their dissent on Tuesday, Wilkinson, Agee, and Niemeyer urged the North Carolina plaintiffs “to take this case up to the Supreme Court immediately. Not tomorrow. Not the next day. Now.” They can read the writing on the wall. Barrett is set to join the bench in four days. By the time SCOTUS decides this case, she will hold the power to blow up state efforts to protect the franchise, starting with North Carolina’s. If Barrett goes along with her far-right colleagues, she will establish a new rule: The Constitution isn’t a bulwark against voter suppression, but an enemy of the right to vote.