After a very long delay in an emergency election case, the shorthanded United States Supreme Court came to a 4–4 tie in an election law case out of Pennsylvania on Monday evening. While a tie result that leaves the lower court ruling standing is a clear short-term win for Democrats in making it easier to vote in the Keystone State in November, Republicans could end up with a much bigger victory if there is any post-election Trump v. Biden litigation. If Amy Coney Barrett joins the court next week as expected, she could be the deciding vote in any case that challenges election or recount rules set out by a Democratic-dominated state Supreme Court in a place like Pennsylvania or North Carolina in opposition to those states’ Republican legislatures.
First, here’s how we got here. In Pennsylvania, the state Supreme Court released a series of decisions making it easier to vote by mail during the pandemic. The court relied upon the state constitution’s right to vote provision in granting the expansion. Republicans went to the U.S. Supreme Court to challenge part of that ruling that allows ballots received up to three days after Election Day without a legible postmark to be accepted as valid votes and counted as part of the vote totals. Among the arguments that Republicans made against this order was that the state Supreme Court acted unconstitutionally in relying on the state constitution against the wishes of the state legislature.
As I explained a few weeks ago at Slate:
The final argument that Republicans are advancing is the boldest and perhaps most dangerous one. The argument is that when state supreme courts apply their state constitutions’ provisions protecting a right to vote to loosen voting rules in a pandemic, these state courts are usurping the power given by the Constitution to state legislatures to set the manner for conducting presidential elections. The argument echoes an argument that three conservative justices on the Supreme Court accepted in the 2000 Bush v. Gore case ending that presidential election. It’s a dangerous idea that a state court applying a state constitution is taking away legislative power, particularly in states like Pennsylvania where the state legislature has itself approved the constitutional provisions being applied.
But this argument is likely to resonate with at least some of the conservative justices on the court. As professor Ned Foley explains, this argument for vast legislative power to set the rules for presidential elections could have dire consequences and that “partisan state legislatures wielding this power could create difficulties that call into question the fairness of the election.”
Of all the arguments advanced by Republicans in these lawsuits, this argument about legislative power can do the most mischief. Most dangerous is the idea, furthered in a recent Bart Gellman Atlantic piece, that state legislatures could try to disenfranchise voters and take back their power to appoint presidential electors directly even after the votes are counted.
Now we know that this hotly contested question deeply divided the justices. It took them almost two weeks to issue an order, and no one ended up writing a dissent. Instead, Chief Justice Roberts sided with the court’s liberals in voting to not grant a stay. All the other conservative Justices would have granted a stay, meaning they likely agreed with the state’s argument. (It is possible they agreed with a different argument made by state Republicans, but if they did, they did not say.) Likely the delay was caused as the Justices debated among themselves about the case, perhaps looking for common ground to avoid a 4–4 tie or as someone tried to pick off someone from the other side to make a majority.
This 4–4 tie is doubly troubling. First, it means that we have no guidance from the court as to when and whether a state Supreme Court can rely on a state Constitution when it expands or changes state voting rules in a presidential election. Even though Democrats opposed the stay sought by Republicans in the case, they begged the Court to fully take the case and give an explanation as to the scope of state court power in this case. This lack of guidance could be a huge problem in the two battleground states—North Carolina and Pennsylvania—with Democratic state Supreme Courts and Republican legislatures who could battle over any post-election voting rules.
Further, it shows that President Trump was right about the role that Judge Amy Coney Barrett could play in any post-election litigation over the winner of the November election. He has said he wants Barrett on the Supreme Court to decide such a case. I earlier expressed skepticism that Barrett would act as a tie-breaker in such circumstances, reasoning that Chief Justice Roberts would not want to put her in this position. But I’ve now reconsidered. Judge Barrett is a deeply conservative judge, much like Justices Alito, Gorsuch, Kavanaugh, and Thomas who voted Monday to grant a stay. She easily could have been a fifth vote here to side with the broad power of state legislatures against state Supreme Courts seeking to protect voting rights under the state constitution.
If you thought the stakes of a Barrett confirmation couldn’t get any higher, they just did.