Supreme Court Ballot Wisdom It isn’t partisan to rule that a state’s voting deadline should stand.
https://www.wsj.com/articles/supreme-court-ballot-wisdom-11603840218?mod=opinion_lead_pos3
The campaign to stigmatize the Supreme Court is already under way, even before new Justice Amy Coney Barrett hears a case. Witness the media hyperventilating after the Justices ruled 5-3 late Monday that Wisconsin’s Nov. 3 ballot deadline must remain in place.
The order sustained an appellate-court ruling that had halted a federal judge’s intrusion saying ballots mailed on time could be counted even if they arrived six days late. The judge claimed Covid-19 as the excuse, but Badger State law says absentee ballots must arrive by Election Day.
Justices Neil Gorsuch and Brett Kavanaugh wrote opinions that should help educate lower-court judges who think they can rewrite state election law on election eve. Justice Kavanaugh cited the Court’s precedents that “recognize a basic tenet of election law: When an election is close at hand, the rules of the road should be clear and settled.”
Justice Gorsuch added that Wisconsin has gone to extraordinary lengths to take account of Covid, including sending all registered voters an absentee-ballot application and return envelope in the summer that they have been able to return since September
If Wisconsin’s Nov. 3 deadline can be thrown out due to Covid and despite the many avenues for casting a vote, Justice Gorsuch wrote, then “what about the identical deadlines in 30 other States?” Why bump the deadline six days and not 10 days? Other judges, he continued, might well “unfurl the precinct maps and decide whether States should add polling places, revise their hours, rearrange the voting booths,” and so forth.
“Last-minute changes to longstanding election rules” risk inviting “confusion and chaos and eroding public confidence in electoral outcomes,” Justice Gorsuch wrote. “No one doubts that conducting a national election amid a pandemic poses serious challenges. But none of that means individual judges may improvise with their own election rules in place of those the people’s representatives have adopted.”
The Wisconsin decision should reduce the chances of postelection legal chaos if the vote count is close. Clear rules that everyone knows upfront mean fewer openings for political mischief that requires Supreme Court intervention a la Bush v. Gore in 2000.
Intriguingly, Chief Justice John Roberts voted with the majority, though he had sided with the liberals in a recent case involving Pennsylvania state law and courts. The Chief explained that he sees less cause to intervene to overrule state courts. But Justice Kavanaugh added, in a footnote to his concurrence, that “state courts do not have a blank check,” since the U.S. Constitution empowers state legislatures to direct the manner of presidential elections.
Justice Barrett will soon get her chance to weigh in on this, as other ballot cases percolate through the courts. After their request for a stay was denied, Pennsylvania Republicans came back to the Supreme Court last Friday, asking the Justices to take the case on the merits and to expedite a ruling. Also pending is an appeal from North Carolina, where a legal settlement extended the ballot deadline by nine days.
The shame is that the left is portraying all this as partisan when the law and Constitution are clear. Both parties benefit from clear and widely understood election rules before the counting begins. So does the cause of democratic legitimacy, no matter who wins.
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