The Supreme Court’s Conservatives Sure Are Pushing Some Crazy Legal Theories Lately

And they all lead to the mass disqualification of mail ballots.

Neil Gorsuch, seated onstage, gesticulates and grins.
Justice Neil Gorsuch at the LBJ Presidential Library in Austin, Texas, on Sept. 19, 2019. Jay Godwin/LBJ Library/Flickr

In an ideal world, the Supreme Court would provide stability in the run-up to a presidential election, imposing uniform rules based on long-accepted principles of election law. We do not live in that world. One week out from the 2020 election, four Supreme Court justices have launched a scorched-earth mission against voting rights. They teed up a Bush v. Gore reprise that could hand Donald Trump an unearned victory. These justices are in open revolt against voting rights, abandoning the pretense of “voter fraud” and embracing state legislatures’ right to disenfranchise their constituents. For now, they are still writing in the minority, though Amy Coney Barrett’s arrival could give them a majority to turn their dissents into law.

Justice Brett Kavanaugh was the first to come out as a member of this vanguard movement. But on Wednesday, he took a step back from the front lines—and Justice Neil Gorsuch stepped in to lead his troops, Justices Clarence Thomas and Samuel Alito, into battle.* Gorsuch’s opinion confirms what Kavanaugh’s implied: The Supreme Court has transformed into a laboratory for radical right-wing theories designed to undercut American democracy.

SCOTUS issued two orders on Wednesday night in cases out of Pennsylvania and North Carolina. Both involve the deadline for mail ballots. Every state requires voters to mail back these ballots by Election Day, but 22 states and the District of Columbia count ballots that arrive shortly thereafter. A Pennsylvania statute disqualifies ballots that come in after election night; the Pennsylvania Supreme Court, however, found that this rule violates the state constitution in light of the pandemic, combined with the Postal Service slowdown. So the court extended the ballot deadline by three days, to Nov. 6. A North Carolina statute counts ballots that come in up to three days after Election Day; the state Board of Elections extended this deadline by six days, to Nov. 9, with the approval of a state court. Republicans challenged both extensions as a violation of the U.S. Constitution.

It’s important to distinguish these cases from the other voting rights disputes that have reached SCOTUS’ doorstep during COVID-19. Every previous case involved a federal court altering state law, often by extending the late-ballot deadline. The conservative justices consistently shot down these decisions, declaring that the federal judiciary should stay out of state election law. By contrast, the Pennsylvania and North Carolina cases involve state courts interpreting state election codes. It is a fundamental principle of federalism that federal courts can’t overrule state courts’ interpretation of state law. So, in theory, the Supreme Court should stay out of these two conflicts, deferring to the state’s authority to regulate its own elections.

But the conservative justices couldn’t stay out of it—perhaps because both Pennsylvania and North Carolina are now poised to count more votes, a prospect that appears to horrify the right flank of the court. Kavanaugh issued his screed against counting every ballot on Monday in an error-riddled opinion that baselessly cast doubt on the legitimacy of mail ballots. Alito took his turn on Wednesday, claiming that Pennsylvania’s election will be “conducted under a cloud” and preserving the option of junking late ballots after Election Day. But he was just warming up for Gorsuch, who issued another opinion on Wednesday attacking North Carolina’s election. It’s worth parsing Gorsuch’s opinion carefully, because in its own way, it is more disturbing than the two that preceded it.

The dispute in North Carolina is, in reality, not a legal dispute at all. State law allows the Board of Elections to modify voting rules when a “natural disaster” has spurred the president or governor to issue a disaster declaration. (Both have.) So voters sued, demanding that the board extend the ballot deadline by six days. The board—unanimously, by a bipartisan vote—ultimately agreed to a “consent judgment,” essentially a settlement, with the approval of a state court. The court found that COVID-19 constitutes a “natural disaster” under state law that justifies a modification of the deadline. North Carolina law permits the board to settle election lawsuits in this manner. The state court of appeals declined to block the settlement, as did the state Supreme Court.

Republicans promptly sued to halt the deadline extension in federal court. They cited the U.S. Constitution’s elections and electors clauses, which allow state legislatures to regulate elections, claiming the board unconstitutionally usurped the legislature’s power. In fact, the Supreme Court has long held that legislatures don’t hold sole authority to run elections; state courts can enforce election rules, and the legislature can delegate their powers—to a board of elections, for instance. Different parts of the state government can play a role without violating the Constitution. SCOTUS has also forbidden federal courts from overriding a state’s interpretation of its own law. As the court put it in 1984, “it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law.”

On Wednesday, the Supreme Court turned away Republicans’ request to shorten the deadline. But in a jaw-dropping dissent, Gorsuch contested the North Carolina court’s interpretation of state statutes. The justice claimed that COVID-19 is not a true “natural disaster” under state law—even though it fits the legal definition according to a state court, as well as the plain text of the statute. He insisted that “the normal schedule for the election” has not been “disrupted” because the state “stands fully equipped to conduct its election on November 3.” But he did not seem to know that state law defines a “disruption” to encompass any impairment of “election administration,” or that the Postal Service warned North Carolina that its mail ballot system would be impaired by slowdowns. And by accusing the board of creating an “unnecessary conflict” with state law, Gorsuch defied the state court’s conclusion that the board’s actions were reasonable: They did not conflict with the election code, but simply enforced it.

Gorsuch’s approach here—going over state law with a fine-toothed comb to see if the state court got it right—is a stunning assault on state sovereignty. An oddly timed one, too: It is outrageous enough to reject an unbroken line of precedent that lets states run their own elections; it’s another thing to do so six days before Election Day. The Supreme Court’s ultraconservative faction appears bent on destabilizing this election. These justices are teeing up another Bush v. Gore if the presidential race comes down to Pennsylvania or North Carolina. They have laid the groundwork to nullify late-arriving ballots on the basis of a dangerous constitutional theory that even Chief Justice John Roberts finds too extreme.

Alito signed on to Gorsuch’s dissent in the North Carolina case, while both Gorsuch and Thomas signed on to Alito’s opinion in the Pennsylvania case. Kavanaugh has already signaled his support for Gorsuch’s approach, though he did not note his vote on Wednesday. (He may have been chastened by backlash to his error-riddled Monday opinion.) These four justices are plainly waiting for Amy Coney Barrett to break the deadlock, though she declined to participate in either case, citing her very recent arrival. She did not recuse herself, so presumably she will participate in litigation that arises after Nov. 3. So many people have tried to make this election run smoothly: More than 80 million Americans have already cast a ballot, and election officials have diligently navigated the pandemic to make voting as safe as possible. Yet American democracy hangs on the vote of a justice who was, by Trump’s admission, chosen to give him a second term.

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Correction, Oct. 30, 2020: This article originally misspelled Samuel Alito’s first name.

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