Although George W. Bush prevailed in the Bush v. Gore decision, it’s often forgotten that the Supreme Court declined to affirm his chief legal argument. This claim was so radical, so contrary to basic principles of democracy and federalism, that two conservative justices stepped back from the brink. Instead, the majority fabricated a novel theory to hand Bush the election—then instructed lower courts never to rely on it again.
But the court has changed. Republican lawmakers revived the original Bush v. Gore argument in fraught election cases this year, and, following Amy Coney Barrett’s nomination, four sitting justices appeared to endorse it. Barrett’s confirmation on Monday will almost certainly tip the balance to make that argument the law of the land on the eve of an election. The result would be an immediate invalidation of thousands of disproportionately Democratic ballots in Pennsylvania and North Carolina—two swing states that could decide the outcome of the election. Put simply, Barrett’s first actions on the court could hand Donald Trump an unearned second term, and dramatically curtail states’ ability to protect the right to vote.
Most Americans know that, in Bush v. Gore, the Supreme Court effectively ruled that Bush would be the next president of the United States. But few can likely explain the court’s justification for that holding, and for good reason: It doesn’t make any sense, and the Supreme Court has not invoked it since. In an unsigned opinion that allegedly spoke for the five conservative justices, the court held that Florida’s recount used procedures that violated “the equal dignity owed to each voter.” Because the standards used to recount ballots varied between counties, the court concluded, the process violated the U.S. Constitution’s equal protection clause. Then, in an unprecedented move, the court declared that this analysis was a ticket good for one ride only, and that lower courts should never invoke its made-up principle again. This disclaimer acknowledged that SCOTUS had never applied such strict scrutiny to ballot tabulation and never would again.
The equal protection rationale shocked legal observers at the time, because Bush’s lawyers had barely bothered to raise it. It was an afterthought in their briefings and oral arguments, a backstop tacked onto their chief argument: that, in ordering a recount, the Florida Supreme Court had unconstitutionally usurped the authority of the Florida Legislature. This main argument was so extreme that Justices Sandra Day O’Connor and Anthony Kennedy refused to support it, leaning instead on the risible equal protection rule that carried the day.
But the other three conservative justices—William Rehnquist, joined by Antonin Scalia and Clarence Thomas—embraced it in a separate opinion. Rehnquist’s concurrence rested on the electors clause of the Constitution, which says that “Each State shall appoint” presidential electors “in such Manner as the Legislature thereof may direct.” He accused the Florida Supreme Court of having “impermissibly distorted” the state’s election code when it ordered a recount. Because the court ran afoul of the “clearly expressed intent of the legislature,” Rehnquist concluded, it had violated the electors clause.
Rehnquist’s position constituted a breathtaking assault on state sovereignty. It is black letter law that state courts hold ultimate authority to determine the meaning of their own state’s statutes and constitution. And the Florida Supreme Court had simply provided its best interpretation of a “legal vote” under Florida law. Secretary of State Katherine Harris rejected ballots with “hanging chads” on which voters had indicated their preference but failed to punch through the hole all the way. The Florida Supreme Court disagreed, citing a state statute that required the counting of defective ballots “if there is a clear indication of the intent of the voter.” Federal judges had a constitutional obligation to accept that (eminently plausible) reading of the law. By refusing to do so, Rehnquist, along with Scalia and Thomas, impermissibly substituted the Florida Supreme Court’s judgment with their own.
After the 2000 election, Rehnquist’s concurrence faded into the mists of history, and for good reason. It would, after all, transform SCOTUS into a national board of elections with veto power over each state’s election rules. Rehnquist’s position was categorically distinct from typical election cases, in which federal courts decide whether some regulation complies with the U.S. Constitution and federal statutes like the Voting Rights Act. Rather than defer to state courts protecting the franchise, SCOTUS would grant itself freewheeling authority to rewrite election laws based on its own subjective sense of a legislature’s intent. And a right-leaning Supreme Court could use this power to crush state efforts to expand voting rights. Since 2000, there has always been at least one conservative justice who would not go along with this power grab.
Until now. By confirming Barrett on Monday, Senate Republicans may well create a five-justice majority that is ready, willing, and able to make Rehnquist’s position the law of the land. There are currently two cases pending before SCOTUS that ask the justices to nullify thousands of mail ballots in Pennsylvania and North Carolina. Both rest on Rehnquist’s Bush v. Gore concurrence. Both give the far-right majority a chance to stomp on states’ ability to protect voting rights.
These cases present similar claims. In Pennsylvania, the state Supreme Court ordered officials to count mail ballots that are sent by Election Day and arrive by Nov. 6. In North Carolina, the state board of elections, with approval from the state judiciary, ordered officials to count mail ballots that are sent by Election Day and arrive by Nov. 12. These decisions rested on interpretations of state law passed with the participation of the legislature. There is nothing unusual, let alone unconstitutional, about them.
Yet four SCOTUS justices—Thomas, Alito, Gorsuch, and Kavanaugh—voted to block the Pennsylvania ballot deadline extension on Oct. 19. [Update, Oct. 26, 2020, at 7:50 p.m.: Gorsuch and Kavanaugh endorsed Rehnquist’s position in Bush v. Gore on Monday night.] Because Chief Justice John Roberts sided with the liberals, the court split 4–4, upholding the extension. But Pennsylvania Republicans quickly came back to SCOTUS and asked for a do-over in light of Barrett’s imminent confirmation. They are plainly banking on Barrett joining the ultraconservatives to scrap the extension.
The story is similar in North Carolina. Three conservative judges on a federal appeals court voted to block the state’s deadline extension, too. These judges, citing Rehnquist’s Bush v. Gore concurrence, urged the plaintiffs to take their case to SCOTUS “immediately.” Republicans complied, timing their request to ensure that Barrett would be able to hear it. Like their Pennsylvania counterparts, North Carolina Republicans believe Barrett will prevent their state from counting late ballots.
In other words, Barrett’s first decisions as a justice may determine the outcome of the election. Late-arriving ballots skew disproportionately Democratic. FiveThirtyEight reports that Pennsylvania or North Carolina may be the “tipping point state,” or the state that delivers the 270th vote in the Electoral College. If Barrett blocks the deadline extensions, she will force these states to throw out a large number of ballots that were mailed on time but arrive late. In a close race, those ballots could be decisive.
Election law expert and Slate contributor Rick Hasen has provided two reasons why SCOTUS should turn away the Pennsylvania case, both of which apply to the North Carolina case, too. First, it’s quite late in the day for the court to change the rules; voters have come to rely on the deadline extension, and it would be unfair to pull the rug out from under them. Second, it would seem that only the Legislature has standing to claim that courts have usurped its power, but the Legislature is not a plaintiff in either case.
But the Supreme Court can do whatever it wants when it has five votes.