The Supreme Court is poised to further eviscerate voting rights in America in two cases that should be considered absolute nonsense, but it’s 2022 and the Supreme Court is what it is. One case is lurking on the shadow docket, which the Court has traditionally considered emergency petitions but now uses as a cudgel to advance the extremist majority’s political agenda. The other is a petition to hear a case that could upend how federal elections are conducted, and could legally allow state legislatures to conduct the kind of coup Trump’s legal team was attempting.
The shadow docket case appears insignificant on the surface, seemingly a simple paperwork question that the Supreme Court should not be spending its time on. A state judicial race in Pennsylvania in the 2021 general election between Republican David Ritter and Democrat Zachary Cohen for the final spot for Court of Common Pleas remains uncalled, with fewer than 75 votes between the candidates. At the center of the dispute are 257 mail-in ballots that were signed but not dated by voters. A federal appeals court ruled last month that the ballots should be counted, Ritter has asked the Supreme Court to intervene and Justice Samuel Alito complied.
Pennsylvania state law requires that mail-in ballots be submitted in the signed and dated envelope provided. The law does not require, however, that the date written on the envelope be the actual date it is signed. It can be any date, past or future, and still be valid. The 257 ballots in question just aren’t signed, and Ritter is arguing that the voters who cast them should be disenfranchised. To be clear, a voter who wrote 01/01/0001 on the envelope should have their ballot counted, Ritter argues, but someone who simply forgot to include the date shouldn’t. It’s a paperwork error.
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Federal voting rights law demands the votes be counted, stipulating “if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election.” In other words, a minor paperwork error should not spoil a vote. The law was passed with the Civil Rights Act of 1964, attempting to stop exactly what Ritter is trying to do—a hunt through ballots cast by people of color to find any small error that could disqualify the vote. The law prohibits states from using such picayune errors to disenfranchise voters. It’s abundantly clear and should not even be a question that federal law demands those ballots be counted.
Ritter is arguing that the voting rights law is unconstitutional, because Congress doesn’t have the power to govern state and local elections (a premise rejected by the Court repeatedly in the past); that the U.S. attorney general is the only party that can sue a state for targeting voters for paperwork errors—the Voting Rights Act allows private parties, e.g. voters, to sue; and that federal courts should not be able to enforce voting rights provisions of the Civil Rights Act in an election that has already happened. Which would mean voters would have to know their votes are going to be tossed and would have to sue for protection before their votes are actually cast. Which is nonsense. The whole premise is nonsense and Alito is bringing it to the court, where his fellow extremists could very well accept it, in the secrecy of the shadow docket.
The other case has not yet been accepted by the Court for the next session, but very well could. It centers on the “independent state legislature” theory, the “800-pound gorilla brooding in the background of election law cases working their way up from state courts,” in election law guru Rick Hasen’s words.
This theory purports that state legislatures have independent authority—over state courts—to set election laws and draw congressional maps. “In its most extreme form, it would not only rework the balance of power in protecting voting rights in states from state supreme courts and executive agencies to state legislatures,” Hasen told The New York Times. “It would also give the Supreme Court a potential excuse to interfere with presidential election results any time a state court or agency has relied on a state constitution to give voters more protections than those afforded by the U.S. Constitution.”
Back in March, the Supreme Court chose not to block congressional maps approved by state courts in both North Carolina and Pennsylvania in challenges brought by those states’ Republicans. But three of the extremist justices made it clear that they would have granted the emergency and a fourth issued an invitation to North Carolina to push the issue with a petition to the court.
“This case presents an exceptionally important and recurring question of constitutional law, namely, the extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal elections,” Justice Alito wrote in March, joined by Justices Thomas and Gorsuch. Justice Kavanaugh wrote that “The issue is almost certain to keep arising until the court definitively resolves it,” but it shouldn’t be done in an election year. Then he invited North Carolina to come back. He said that the court should grant a petition “in an appropriate case—either in this case from North Carolina or in a similar case from another state.”
So here comes North Carolina Republicans with their petition, which the justices will consider whether to take up next week in private. Should four justices vote to grant review, it will be on the next session’s docket. There are already four justices ready to go ahead with it and decide well ahead of the 2024 election.
The North Carolina Supreme Court called the challenge to its constitutional role in elections “repugnant to the sovereignty of states, the authority of state constitutions and the independence of state courts, and would produce absurd and dangerous consequences.”
This is precisely what the new majority on the Supreme Court is trafficking in these days—absurd and dangerous consequences. On everything, from abortion to criminal justice to the environment to voting rights. The only way this centuries-long experiment in democracy will survive is by taking minority rule away from the Court and from the Senate which created it.
Elie Mystal is on Daily Kos' The Brief podcast
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