High court may get the last word
Americans are voting in record numbers by mail with Tuesday sure to see long lines of voters curling out front of polling places. But waiting with the final word on counting ballots will be the Supreme Court, especially its newest member Amy Coney Barrett.
The testing ground will be the expanded period to count mailin votes. Democrats have pushed for the extra days to accommodate the mountain of mail piling up in election offices or delayed by balky postal deliveries. The votebymail timeline is also justified as a safety precaution to protect voters from catching the coronavirus in polling places.
Republicans aren’t sold, saying the added time invites trouble and drags out election day unnecessarily. In plainer terms, it’s a political fight over expanding or restricting the vote with the final say resting with a solidly conservative Supreme Court.
The high court is stepping into the dispute uncertainly, at least for now. So far it’s faced three cases hinging on voting rules in a trio of battleground states prized by both President Trump and Joe Biden.
It blocked extra days to tabulate latearriving ballots in Wisconsin, a win for Republicans. But the court let stand extended timelines in Pennsylvania and North Carolina. All three states have a Democratic governor and Republicandominated legislature, a lineup that’s upping the stakes and partisan temperature.
The overall outcome suggests a win for Democrats, but it’s only a tentative one. In Pennsylvania, the ballots marked by election day but arriving up to three days later will be parked separately and saved for a postelection court fight that the high court’s conservatives are plainly hoping to revisit. The drawnout task of tabulating the results is about to get even longer.
No wonder Pennsylvania’s Democratic governor responded with a plea that voters walk their ballots to voting spots right away and not wait for the uncertainties of the mail box.
In North Carolina, the court let stand a plan to accept ballots up to Nov. 12. That date was worked out to settle a suit asking for more time. The court’s decision was a 44 deadlock which had the effect of going along with extension. The Wisconsin case was handled by declining to take up a lower court decision blocking a ballotcounting extension.
In general, the justices balked at giving their opinions in detail and cited a reluctance to act on short notice in the final days of an election. That may sound cautious and sensible, but it also indicates that the court isn’t done with the topic and wants to hear more.
From the lofty heights of the Supreme Court, there’s a belief that judges stray too far in invoking voting rules. The game is better set by state legislatures which should be kept immune from even state supreme courts. That’s the mindset of conservative justices who are about to hear from Barrett, who took her seat less than a week ago. She sidestepped a role in the latest cases, indicating she hadn’t had time to review the arguments, and dodged questions during her confirmation hearings on the topic.
But if the votes are close on election day, the court may be called on again to weigh in. The spoken arguments may dwell on notions of judicial intrusion, separation of powers and constitutional issues giving states the right to set voting standards.
But it will also come down to rough politics. Trump has repeatedly denounced mailin ballots as ripe for fraud. Now he’s counting on the rightward shift on the Supreme Court to follow through with legal consent to his wish. Americans have good reason to worry that the election outcome will come down to a jury of nine justices. That should be all the more incentive for Americans to vote.