Shorthanded high court could have election role
Justices are facing lawsuits on balloting
WASHINGTON – A presidential election riddled with rampant court challenges and ripe for more now faces a Supreme Court with an empty chair.
The death Friday of Associate Justice Ruth Bader Ginsburg adds more intrigue to a pandemic-infused campaign that’s been challenged from Alabama to Wisconsin, prompting the justices to resolve political disputes they would rather sidestep.
More than 300 lawsuits have been filed nationally due mostly to problems associated with COVID-19 and the expansion of voting by mail. That led Republicans, including President Donald Trump’s reelection campaign, to demand limits while Democrats push for further opportunities.
And the nation’s ever-rising political polarization and reckless claims on social media make it even more likely that local, state and federal elections will end up in court, not only in the weeks leading up to Election Day but after.
“I don’t think the Supreme Court wants this fight,” said Justin Levitt, a professor at Loyola Law School in Los Angeles who specializes in voting rights. “There’s lots of chaos in this election.”
The justices have been involved in election lawsuits since April, ruling 5-4 along ideological lines that absentee voting in Wisconsin could not be extended past the primary election date. The decision forced those who had not received absentee ballots to visit polling places during the early days of the pandemic or forfeit their votes.
Since then, the high court issued stopgap rulings on issues from absentee ballot witnesses in Alabama and petition signatures in Idaho to felons’ voting rights in Florida and mail ballots for senior citizens in Texas.
Last week, the Trump administration said it will ask the court to allow the exclusion of undocumented immigrants from the census count used to allocate seats in Congress. And a federal judge in Washington state blocked U.S. Postal Service actions that he warned could lead to voter disenfranchisement.
If a major case that could determine the election reaches the court this fall or winter, it either will be shorthanded – raising the potential of a tie vote – or be controlled by a new, six-member conservative majority installed by president and Senate Republicans.
Battleground states Pennsylvania, Michigan and Wisconsin could become the Florida of 2020. Rules in all three prevent mailed ballots from being counted until Election Day. That could lead Trump to declare victory before a “blue wave” of votes for Democratic nominee Joe Biden appears.
Voting rights advocates feared a Supreme Court showdown long before Ginsburg died of metastatic pancreatic cancer Friday.
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In recent weeks of this year’s White House race, lawsuits were flying over how ballots and ballot applications are distributed, witnessed and signed. Once Election Day comes and goes, the litigation will focus on how the ballots are delivered, collected and counted.
“When an election is close, everybody pulls out their knives, and it’s a total fight over every ballot,” said Thor Hearne, a conservative election litigator.
Nothing would prevent a shorthanded court from tackling lawsuits before, during or after the election. But if the justices were deadlocked, the lower court rulings would stand.
House Speaker Nancy Pelosi did not rule out the possibility of impeaching Trump if he tries to push through a Supreme Court nominee to replace the late Ginsburg in a lame-duck session.
Pelosi said Ginsburg’s death made it more critical than ever that Americans vote in the 2020 general election.
“Right now, our main goal – and I think Ruth Bader Ginsburg would want that to be – would be to protect the integrity of the election as we protect the American people from the coronavirus,” Pelosi said.