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OPINION | PAUL WALDMAN: Much at risk in election cases

by Paul Waldman The Washington Post | October 21, 2020 at 3:36 a.m.

The 2020 election could well end in the Supreme Court when the challenges to election procedures and results brought by the Trump campaign and the Republican Party reach their conclusion.

Of course, former Vice President Joe Biden may win by a wide enough margin that the Republican lawsuits won't be able to turn the election in President Donald Trump's favor even if they successfully toss out a few thousand votes here and there.

But those lawsuits -- seeking to restrict who can vote, make votes more difficult to cast and keep states from counting as many votes as possible -- are already coming. They will continue after Election Day.

And the Supreme Court just showed us that it will probably be there to put a thumb on the scale for the GOP.

That's not all. The legal ideas now being formulated could shape our elections long past this year.

On Monday, the court turned back a lawsuit by Pennsylvania Republicans challenging a ruling by the state's Supreme Court, which said that election officials must accept mail ballots received up to three days after Election Day. The justices did not explain why they declined to hear the case.

They did say that four of them -- Clarence Thomas, Samuel Alito Jr., Neil Gorsuch and Brett Kavanaugh -- would have granted a stay. Because there was a 4-4 tie, Pennsylvania Democrats prevailed, and the votes can be counted.

But if and when Republicans confirm Amy Coney Barrett, there will be no more 4-4 ties. And the fact that the court's four most conservative justices may have been inclined to rule with Pennsylvania Republicans suggests that they are embracing a radical reimagining of the court's role in determining voting laws for every state in the country -- one that could help Republicans maintain minority rule even as they lose support in the American public.

To understand why, we have to know a bit about how election law works. The Constitution does not include a right to vote, but 49 of the 50 state constitutions do. (Arizona's is the exception.) What it does say is that state legislatures determine the manner of appointing presidential electors (almost all states do so by statewide popular vote) and determine the "times, places, and manner" of congressional elections.

The key question here is whether, when the Constitution mentions state legislatures, it should be understood as referring only to the institution of the legislature itself, or to a state's whole lawmaking process.

If it means only the legislature itself, then the Supreme Court could use that interpretation to invalidate whatever a state constitution says about voting, strike down the power of a governor to veto voting regulations passed by the legislature, or nullify ballot initiatives on voting passed by the voters themselves.

The Pennsylvania GOP argued essentially that because the U.S. Constitution says the legislature determines voting laws for federal elections, a state supreme court has no right to weigh in, even when it's ruling on how state law or the state constitution applies.

In this case, it would mean that the Pennsylvania Supreme Court can't be the judge of what the Pennsylvania state Constitution says when it comes to federal elections, because the state Legislature's power is almost absolute.

"I think there's good reason to believe, and the 4-4 vote here confirms that" soon there could be "a majority on the court that would endorse what's called the 'independent legislature' doctrine," Richard Pildes of the New York University Law School said.

And this conservative Supreme Court majority -- which is about to get even more conservative -- has almost never met a voting restriction it didn't like. Sweeping voter purges, discriminatory ID requirements, partisan gerrymandering -- whatever Republican legislatures have come up with, this court has looked kindly on.

Among other things, in the future it could strike down independent redistricting commissions, which are now used in seven states (California, Arizona, Washington, Idaho, Colorado, Minnesota and Michigan) to draw congressional district lines, because it's not the "legislature" determining them.

In 2015, the Supreme Court upheld Arizona's commission, which was created by voter initiative. But the vote was 5-4, with Anthony Kennedy joining the court's liberals. Chief Justice John Roberts dissented. Kennedy was later replaced by Kavanaugh, and Barrett is soon to join the court.

If they lean on a strict interpretation of the word "legislature," the Supreme Court could rule that, for instance, voters couldn't pass initiatives to change rules for congressional primaries. Given the conservatism of the court, it's not hard to imagine them ruling for Republicans in case after case.

But with only two weeks to go, "What we're seeing now is courts starting to shut down further changes this close to the election," Pildes said. That's mostly to Republicans' benefit, since most of the cases involve Democrats seeking to adjust requirements on things such as absentee ballots amid the pandemic.

But the post-election conflict will probably see a wave of new lawsuits over which ballots are counted.

"The court still has an opportunity to protect its institutional credibility," said Wendy Weiser, director of the Democracy Program at the Brennan Center for Justice, and "at least some of the justices must recognize that."

But retaining that credibility could well mean saying no to the Republican Party, which they haven't been inclined to do so far.

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