The Supreme Court Is Sitting On a Potential Voting Rights Bomb

The court may use Bush v. Gore reasoning to radically change election law.

People wait in line to cast their vote during early voting at City Hall in Philadelphia, Pennsylvania on October 7, 2020. (Photo by GABRIELLA AUDI / AFP) (Photo by GABRIELLA AUDI/AFP via Getty Images)
People wait in line to cast their vote during early voting at City Hall in Philadelphia, Pennsylvania. GABRIELLA AUDI/Getty Images

The Supreme Court has dominated headlines in recent weeks—not least because a potentially blockbuster new term just opened. On Tuesday, Slate staff writer Mark Joseph Stern spoke with Leah Litman, assistant professor of law at the University of Michigan and co-host of the podcast Strict Scrutinyabout the election law cases heading to the Supreme Court and how the court could shape this election. Part of their conversation, adapted from Slate’s weekly live election show and edited and condensed for clarity, can be read below.

Mark Joseph Stern: There’s currently a case pending before the Supreme Court, as we speak, about Pennsylvania and absentee ballots. Can you talk to us a little bit about that case and tell us what the stakes are?

Leah Litman: So the Pennsylvania state Supreme Court held that under Pennsylvania state law, voters are allowed to drop off absentee ballots after election day, and they held that under Pennsylvania state law, votes will be counted, even if they are received several days after election day. The Pennsylvania state Supreme Court also upheld the use of drop boxes to collect absentee ballots.

So the Republican party went to the US Supreme Court, asking the US Supreme Court to put on hold that decision of the Pennsylvania State Supreme Court on the grounds that the Pennsylvania State Supreme Court hadn’t interpreted state election law, but had actually changed it in violation of the elections clause. This is, of course, eerily reminiscent of the theory that was advanced in Bush v. Gore, which was that the Florida State Supreme Court had altered the state’s rules for counting ballots, and that the constitution required those rules to be set by the Florida legislature. The US Supreme Court has not acted on this petition yet. It has been holding it for quite some time now. And we really could be expecting a decision any day, and it could be, again, I say many of these decisions could be really significant, but that’s because they all could be. Pennsylvania is another state that could go for Biden or Trump, and whose outcome could affect the winner of the 2020 election.

Let me just be really clear about this theory, because it seems so radical that I think a lot of people are not going to quite grasp it at first. So Pennsylvania Republicans are arguing that the State Supreme Court, which is the ultimate arbiter of state law, violated the Constitution because it changed election law and only the legislature is allowed to do that. Does that mean that the governor is not allowed to have any kind of say in election law? Does it mean that if the voters choose Biden at the polls on November 3, that the legislature can step in and just overrule them and assign electors to Donald Trump anyway?

So, I’m a federal courts professor, and I think that one of the things that is most striking about this theory that the Republicans are advancing is that they are asking a federal court here, the US Supreme Court, to second guess a state supreme court’s decision about state law. They’re essentially saying the state supreme court got state law so wrong it violated the federal Constitution.

If they actually get the US Supreme Court to accept that argument, then I do think it really does open the door for different challenges to how states are running their elections, because it allows any dissatisfied party, and I think it would sometimes be the Republican party, who would be challenging governors, and legislatures, or courts’ attempts to expand voting rights in the franchise.

And they would argue that, effectively, those governors or those courts got state laws so wrong that they were violating the federal Constitution. I think that that is an extremely dangerous precedent, and I am waiting on pins and needles to see what the US Supreme Court does.

So that’s a theory that’s similar to what Scalia, Thomas, and Rehnquist said in Bush v. Gore.

Yeah, exactly.

So basically, the legislature calls the shots and everybody else can just go home. Very terrifying.

I want to talk about the Department of Justice. Because the DOJ has been so politicized under Trump, I think it’s important to talk about how unprecedented it is for Bill Barr to be joining Donald Trump and his effort to basically sabotage the integrity of the election.

Yeah. So this is another norm that the Trump administration has really bulldozed through. Previous Departments of Justice and Attorneys General have thought that the DOJ should not be intervening, or not even intervening, but coming anywhere close to weighing in on the propriety of an election or election results. In addition to the statements that you mentioned, Bill Barr propping up unfounded conspiracy theories about voter fraud with respect to absentee ballots, he has also altered department policy, essentially allowing federal officials to potentially intervene in the state’s conduct of elections if they are suspecting voter fraud. And they are just undermining norm after norm, and this is one of the most important ones, is allowing our elections to be conducted free of federal coercion and federally propagated conspiracy theories.

Right. The Department of Justice and Trump’s personal lawyers — is there a difference at this stage?

Perhaps in that we are paying the Department of Justice and not Trump’s personal lawyers, but maybe I’m missing one.

This transcript was adapted from In the Know, Slate’s live election show that broadcasts every Monday at 1 p.m. ET on YouTube and Facebook. Watch the full chat in the player below.

Next Monday, Slate staff writer Julia Craven will be joined by Philip Agnew, co-founder of the Dream Defenders. We hope to see you there!

See more of Slate’s live events archive or upcoming events.