WASHINGTON – A presidential election riddled with rampant court challenges and ripe for more now faces a Supreme Court with an empty chair.
The death Friday of Associate Justice Ruth Bader Ginsburg adds an additional layer of intrigue to a pandemic-infused campaign that’s been challenged from Alabama to Wisconsin, prompting the justices to resolve political disputes they would rather sidestep.
More than 300 lawsuits have been filed, in nearly every state, thanks largely to problems associated with COVID-19 and the expansion of voting by mail. That has led Republicans, including President Donald Trump’s reelection campaign, to demand limits while Democrats push for further opportunities.
And the nation’s ever-rising political polarization and reckless claims on social media make it even more likely that local, state and federal elections will wind up in court, not only in the weeks leading up to Election Day but in the days and weeks thereafter.
“I don’t think the Supreme Court wants this fight,” said Justin Levitt, a professor at Loyola Law School in Los Angeles who specializes in voting rights. “There’s lots of chaos in this election. I don’t think the court wants anything to do with that.”
But the justices have been involved in election lawsuits since April, when they ruled 5-4 along ideological lines that absentee voting in Wisconsin could not be extended past the primary election date. The decision forced those who had not received absentee ballots to visit polling places during the early days of the pandemic or forfeit their votes.
Since then, the high court has issued stopgap rulings on issues ranging from absentee ballot witnesses in Alabama and petition signatures in Idaho to felons’ voting rights in Florida and mail ballots for senior citizens in Texas.
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It won’t end there: On Wednesday, the Trump administration said it would ask the high court to allow the exclusion of undocumented immigrants from the census count used to allocate seats in Congress. And a federal judge in Washington state blocked U.S. Postal Service actions that he warned could lead to voter disenfranchisement.
Bush v. Gore redux?
The Supreme Court has been here before. In 2000, its 5-4 ruling in Bush v. Gore stopped Florida’s recount and handed the presidency to George W. Bush by a margin of 537 votes there. But at least it had nine justices involved.
Since then, the court allowed Ohio Republicans to challenge voters at the polls in 2004. It upheld Indiana’s photo identification law in 2008. In 2014, it let restrictions passed by Republican legislatures stand in North Carolina, Ohio and Texas while blocking them in Wisconsin.
If a major case that could determine the election reaches the court this fall or winter, it either will be shorthanded – raising the potential of a tie vote – or be controlled by a new, six-member conservative majority installed by the president and Senate Republicans.
Three of the closest battleground states in the nation – Pennsylvania, Michigan and Wisconsin – could become the Florida of 2020. Rules in all three states prevent mailed ballots from being counted until Election Day. That could lead Trump to declare victory before a “blue wave” of votes for Democratic nominee Joe Biden appears.
“The possibility that we could have another Florida is maybe heightened a little bit” because of the expected onslaught of absentee ballots, said Dale Ho, director of the voting rights project at the American Civil Liberties Union. “The possibilities just get too crazy.”
Voting rights advocates feared a Supreme Court showdown long before Ginsburg succumbed to metastatic pancreatic cancer Friday evening.
The Supreme Court’s rulings on voting rights have been among its most controversial. After Chief Justice John Roberts’ 2013 opinion in an Alabama case wiped out the key section of the Voting Rights Act, several Southern states with a history of discrimination imposed new restrictions.
Last year, Roberts again led a 5-4 majority to rule that federal courts may not intervene to block even the most partisan legislative district maps drawn by state lawmakers, a decision that allowed partisan gerrymandering to continue, unless state courts decide to intervene under state law. It was a dramatic withdrawal from the political battles that have consumed states for decades, and it was loudly denounced by the court’s liberal justices.
And in July, the court temporarily blocked a federal district judge’s ruling that would have let Florida felons who completed their sentences vote in upcoming elections despite owing fees, fines or restitution. The U.S. Court of Appeals for the 11th Circuit last week reversed the lower court, keeping in effect the state’s requirement that felons pay up before voting. Judge Barbara Lagoa, who Trump is considering for Ginsburg’s Supreme Court seat, was in the majority in that appeals court ruling.
The knives come out
In recent weeks of this year’s White House race, lawsuits are flying over how ballots and ballot applications are distributed, witnessed and signed. Once Election Day comes and goes, the litigation will focus on how the ballots are delivered, collected and counted.
“When an election is close, everybody pulls out their knives, and it’s a total fight over every ballot,” said Thor Hearne, a conservative election litigator.
Speculation about legal battles even extends to an obscure 19th-century law called the Electoral Count Act that sets rules for Congress to resolve potential disputes in December between competing slates of electors from the same state//. Faced with such a battle, the House of Representatives could emerge deadlocked in early January, increasing the need for court action.
Nothing would prevent a shorthanded court from tackling lawsuits before, during or after the election. But if the justices were deadlocked, the lower court rulings would stand.
The day before Ginsburg’s death, Associate Justice Stephen Breyer was asked during an online event sponsored by George Washington University Law School about the potential of lawsuits reaching the high court.
Breyer’s advice? “Deal with the case when it comes up,” he said. “Don’t deal with it on the basis of what’s said in the newspaper.”