Quick Takes (v54): How to Steal an Election

The eight justices of the US Supreme Court have been plowing through election-related cases at a fast and furious clip, announcing decisions almost exclusively without comment over the past several weeks. 

All that changed yesterday, and it's frightening what will happen now that Justice Amy Coney Barrett has been sworn in at a socially-distanced ceremony at the White House.

In Democratic National Committee vs. Wisconsin State Legislature, decided yesterday on a 5-3 vote (Justices Kagan, Breyer and Sotomayor dissented, with Kagan writing for the three), it seems to people more knowledgeable than me that the Court has started laying the foundation for putting now sixty collective fingers on the side of restricting votes, rather than counting them - and that they've done it blatantly, and shockingly. 

In the lower court, the judges decided that mailed-in ballots could be counted for up to six days after Election Day, provided that they were postmarked before Election Day. The decision, of course, was based on issues caused by the pandemic and by concerns about the US Postal Service's ability to process mail timely. The Supremes disagreed.

Here's an excerpt from Vox, talking about the majority decisions from Justices Gorsuch and Kavanaugh, with a focus on the concept of 'dual sovereignty' - the premise that the SCOTUS should defer to state court decisions on issues of state law, and that the SCOTUS has the final word on issues of federal law. 

If the Supreme Court of the United States had the power to overrule a state supreme court on a question of state law, this entire system of dual sovereignty would break down. It would mean that all state law would ultimately be subservient to the will of nine federal judges... They also sent a loud signal, just eight days before a presidential election, that long-settled rules governing elections may now be unsettled. Republican election lawyers are undoubtedly salivating, and thinking of new attacks on voting rights that they can launch in the next week. (emphasis added)

And from the Washington Post, which began its analysis by pointing out that, according to Wall Street Journal map, it took an average of 10 days for a first-class letter to be delivered in Wisconsin back in September, we learn that Justice Kavanaugh's concurrence included this ridiculous and irrelevant statement.

Voters who, for example, show up to vote at midnight after the polls close on election night do not have a right to demand that the State nonetheless count their votes...Voters who submit their absentee ballots after the State’s deadline similarly do not have a right to demand that the State count their votes.

He further argued

For important reasons most States, including Wisconsin, require absentee ballots to be received by election day, not just mailed by election day. Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election. And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter. States that require absentee ballots to be received by election day still have strong interests in avoiding suspicions of impropriety and announcing final results on or close to election night.”

In the dissent, Kagan hit back on that argument.

Justice Kavanaugh alleges that ‘suspicions of impropriety’ will result if ‘absentee ballots flow in after election day and potentially flip the results of an election." But there are no results to ‘flip’ until all valid votes are counted. And nothing could be more ‘suspicio[us]’ or ‘improp[er]’ than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is to disserve the electoral process.

And that, of course, was the majority's intent. It's the president's intent, it's the GOP's intent, it's the Republican National Committee's intent, and it's the intent of Republican-controlled legislatures, perhaps especially where the governor is a Dem.

Back to the Vox article, this time to look quickly at the implications of what Justice Neil Gorsuch had to say in his concurring decision. He focused on the Constitution, which says that

the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

And in his "hyper-literal" interpretation, the word 'legislature' means exactly - and only - the body referred to as the 'state legislature, because the legislature - "not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.” 

The problem with that?

State supreme courts may lose their power to enforce state constitutions that protect voting rights. State governors may lose their power to veto election laws, which would be a truly astonishing development when you consider that every state needs to draw new legislative maps in 2021...

This is our future: uncounted votes, emasculated state courts, and more. Gerrymandering to rig state legislatures? Check. Other voter suppression tactics, such as restricting hours in urban areas? Check. Closing polling places that are accessible via public transportation? Check. 

We ain't seen nothing yet, folks. 

We ain't seen nothing yet.