Just one week ago, the Supreme Court deadlocked 4-4 on a Pennsylvania mail-in balloting dispute, allowing the state to go forward with counting mail-in ballots postmarked by Election Day and received as long as three days after the election. That was a temporary win for voting, one that Monday's confirmation of another illegitimate Supreme Court Justice will likely undo. Republicans in Pennsylvania immediately pushed for the court to reconsider that case.
Moments before Barrett's confirmation, the court also rejected Democrats' attempts to have mail-in ballots in Wisconsin counted up the six days after Election Day, provided they are postmarked on or before November 3. That ruling was 5-3. Chief Justice John Roberts was the vote change between the two cases. In the Pennsylvania dispute, the court was being asked to overturn a state supreme court decision, and was basically upholding "the authority of state courts to apply their own constitutions to election regulations." The Wisconsin ruling he was tossing, however, came from a lower federal court. "Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin," Roberts wrote.
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Clearly Republicans are looking to a new 5-4 radical majority, joined by Barrett to do what Donald Trump demanded in nominating her—help him out in this election. She pointedly refused to say that she would recuse herself from any election cases in questioning by Democrats during her confirmation hearings, even after Trump's bald statement that he was appointing her to look out for his reelection. The question is whether the court, even with Barrett, would reconsider the case one week from the election, possibly throwing Pennsylvania into chaos with voters not knowing what rules were in effect. "We now have another week where the election is taking place and people have been conducting themselves under the belief that as long as ballots are postmarked by Election Day, they're going to be accepted," said Rick Hasen, an election law expert at the University of California, Irvine, and a CNN analyst. "Voters knew there was a dispute over what the timing was and the Supreme Court declined to get involved. So for the court to get involved now after voters relied on it would be really tough."
There's every evidence that four of the justices don't give a damn how tough it would be on voters or elections officials. While a decision by the court to rehear the Pennsylvania case would most definitely call in to question the court's politicization, it's unclear whether any of the conservatives other than Roberts would be particularly concerned about that. Chances are, for the remainder of the conservative hard-liners—Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh—the bald power play of trying to fix the hotly contested battleground of Pennsylvania for Trump is part of the job.
Consider the Wisconsin case. More particularly, consider the argument made by Kavanaugh in which he totally embraced Trump's characterization of absentee ballots as fraudulent. Kavanaugh defended Wisconsin's attempts to disqualify ballots cast before Election Day, saying that "most 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." Right there he is asserting that only in-person votes are valid. That they comprise the election. That's despite the fact that in at least 18 states as well as the District of Columbia all of the ballots cast by the day of the election ARE the election, and they are counted and there is no result in the election until they are all counted.
Related to the Pennsylvania case, where Roberts says that the state Supreme Court has the final say, Kavanaugh had another argument that's terrifying elections legal minds. In a footnote in his 18-page diatribe about voting, Kavanaugh asserted an argument from the 2000 Bush v. Gore dissent put forward by William Rehnquist, Antonin Scalia, and Thomas that would have given the Supreme Court the brand-new right to overrule state courts on state elections laws. That was an argument too extreme even for the court that decided to select George W. Bush president, halting the ballot counting in Florida. Kavanaugh, however, cites that minority opinion as though it were precedent, even though it was rejected by the majority and even though the court took great pains in 2000 to declare that the case should never be considered as precedent in future elections disputes. Kavanaugh—and Roberts and Barrett—by the way, were all part of the Bush legal team that secured that victory.
The argument Kavanaugh advanced Monday in the Wisconsin case is at the heart of what deadlocked the court in the Pennsylvania case—whether the state supreme courts can interpret state laws and overrule their legislatures. Kavanaugh, in his opinion, is arguing that it is within the powers of the U.S. Supreme Court to intervene and review the decision by state supreme courts to make sure they that are complying with the "intent of the legislature." Which is what he and Gorsuch and Alito and Thomas wanted to do in the current Pennsylvania case, and might just get the chance with Barrett joining their ranks. It's not a certainty that Barrett would be as radical, but what we know about her thus far means we should expect the worst of her.
What this means for the short term is that voters in Pennsylvania and Wisconsin who have not already voted need to do so right away, either in person or by dropping their ballots off at elections offices or in official drop boxes. They need to make sure their ballots are not sent by the U.S. Postal Service, which is experiencing delays as bad as they were in the summer. What it means in the long term is that the Supreme Court, and all the federal courts, must be balanced through expansion. It also means that we need to flip state supreme courts and state legislatures to bodies that respect and uphold voting rights.
But for now, it means we have to win every possible seat on the ballot in one week.