The Supreme Court preserved the possibility of a major postelection battle over the validity of many Pennsylvania ballots on Wednesday, leaving the door open to a Bush v. Gore reprise in the weeks after Nov. 3, even as they punted the question of late-arriving ballots down the road.
Wednesday’s order involves a long-running dispute over Pennsylvania’s mail-in ballot procedures. A state statute requires all ballots to be received by Election Day, but the Pennsylvania Supreme Court found that—due in part to the unprecedented nature of voting during a pandemic—this requirement violates the state constitution. It ordered officials to count ballots that are mailed by Election Day but arrive by Nov. 6, three days after the polls close. Republicans asked the U.S. Supreme Court to block that ruling; last week, it refused by a 4–4 vote, with Chief Justice John Roberts joining the liberals. In light of Amy Coney Barrett’s then-imminent confirmation, Republicans went back to SCOTUS, asking them to re-decide the case immediately in their favor.
The justices declined this invitation on Wednesday with no noted dissents, but that doesn’t tell the full story. Barrett did not participate, though she made it clear that she had not recused herself, but rather lacked the time “to fully review the parties’ filings.” Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, wrote a separate statement that reads much like a dissent. Alito wrote that he “reluctantly” decided that “there is simply not enough time” to resolve the case “before the election.” He noted, however, that Pennsylvania officials will voluntarily segregate ballots that arrive before Election Day and after. If SCOTUS overturns the Pennsylvania Supreme Court just after the election, then, “a targeted remedy will be available.” This means that SCOTUS can still decide to order the state to throw out those ballots received between Nov. 4 through 6, and that Barrett can still opt to participate in the case after Election Day.
Alito described this potential “targeted remedy” as “modest relief.” It would be anything but: This “relief” would likely involve the U.S. Supreme Court nullifying thousands of ballots cast under a lawful court order. It’s hard to overstate the potential impact of such a dramatic action. FiveThirtyEight reports a 37.1 percent chance that the election will come down to Pennsylvania. If the race is close enough, the winner of Pennsylvania—and the presidency—might come down to a few thousand ballots. There’s a chance, however slim, that those late-arriving ballots, in other words, could decide the whole election. If SCOTUS throws them out and ends up handing Trump a second term, it would make Bush v. Gore look like a warm-up act.
Why, exactly, do at least three justices want to toss all these ballots? After all, 22 states and the District of Columbia count ballots that are mailed by Election Day but arrive shortly thereafter. And it’s historically been black letter law that federal courts cannot overrule state courts’ interpretations of their own state constitutions. But the federal Constitution says that state legislatures have authority over election law. And it was the Pennsylvania Supreme Court that ordered a deadline extension under its interpretation of the state constitution. Alito claimed that its decision unconstitutionally usurped power from the legislature.
This argument may have specious appeal, but it’s a recipe for grievous intrusions upon state sovereignty. Consider the Pennsylvania case at hand. It’s true that the state legislature passed a law that disqualified ballots received after Election Day. But an earlier state legislature established the Pennsylvania Constitution. It included a guarantee that all elections must be “free and equal,” and gave the Pennsylvania Supreme Court authority to enforce that promise. The current Pennsylvania Supreme Court believed that, in light of the pandemic and Postal Service slowdowns, the mass disqualification of late ballots would violate this “free and equal” guarantee by discriminating against voters whose ballots are delayed through no fault of their own. So it ordered a deadline extension to safeguard the rights protected by the Pennsylvania Constitution.
It is a fundamental principle of judicial review that SCOTUS defers to a state court’s reading of a state constitution. Alito wants to abolish this rule when a state court tries to protect voting rights under its state constitution. Instead of allowing the state to regulate elections as it sees fit, Alito would burst in, Kool-Aid Man style, to announce that the state courts can no longer interpret their own election laws. As SCOTUS has explained, “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.”
A Sword of Damocles now hangs over the Pennsylvania election. Alito, Thomas, and Gorsuch have preserved their own power to throw out ballots in the state; Joe Biden now knows that if he ekes out a narrow victory, SCOTUS might step in and void enough ballots to change the outcome. Justice Brett Kavanaugh did not join Alito’s statement, but he endorsed Alito’s theory on Monday, so he may be game for the scheme, as well. (Perhaps he was chastened by the backlash to his error-riddled Monday opinion.) And Barrett, who has not recused, will have enough time to participate in post-election litigation if she so chooses.
Wednesday’s order is therefore a reprieve, one that might not last long. A vocal minority of the Supreme Court has endorsed a sinister theory that was too extreme for the Bush v. Gore majority. They are hungry for a chance to smack down state courts that protect voting rights, and Barrett may well join them next time around. It’s not enough for Biden to win Pennsylvania. He must win the state by so many votes that SCOTUS cannot snatch it away.
Pennsylvania voters, don’t mail back your ballots—it’s now too late. Drop it off at your local election office or drop box. Do not leave your vote in the hands of the Supreme Court.