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One theory by one justice binds together Supreme Court’s contradictory election opinions

The Washington Post logo The Washington Post 10/30/2020 Robert Barnes

The wave of Supreme Court action on lawsuits challenging state election procedures and vote counting across the country in advance of Election Day appears at times contradictory and haphazard.

The court kept in place a requirement that absentee ballots in Alabama bear a witness’s signature, but said a suspension of that requirement in Rhode Island was okay. In the past week, it turned down a request to extend the deadline for receiving mail-in ballots in Wisconsin, and allowed extensions to remain in place in Pennsylvania and North Carolina.

But one theory, espoused by only one justice, holds the decisions together.

Chief Justice John G. Roberts Jr. appears to have been on the prevailing side in each of the dizzying rounds of litigation sparked by pandemic-related accommodations, the increased demand for mail-in ballots, and the worry about the Postal Service’s ability to handle it.

[Democrats in Pennsylvania, North Carolina claim key wins at Supreme Court]

Just as Roberts was the court’s pivotal justice in the term that ended this summer, so has he been the key to the court’s orders in the voting litigation.

And, as with his central role in other matters, no one knows if it will last.

Deciphering the court’s pattern in the voting cases requires a bit of conjecture. All of the actions came in emergency applications to the court, where there are no oral arguments and justices often do not provide the reasoning for their actions — or even a vote count.

But Roberts is the only justice not to have dissented. And when he wrote a short opinion, it was somewhere between liberals who believe dramatic accommodations are warranted during a pandemic, and conservatives who say the judiciary should not second-guess state legislatures, who are entitled to set the rules.

Robert is skeptical when federal judges intervening in those decisions, but defers when state courts and election boards step in.

So Roberts, along with his fellow conservatives, has blocked changes imposed by federal judges in Alabama and Wisconsin. But he has been open, along with the court’s liberals, when state actors — the Pennsylvania Supreme Court, and election officials in Rhode Island and North Carolina — agree to loosen restrictions.

After agreeing not to stay the decision of the Pennsylvania Supreme Court, Roberts wrote to say why he’d gone the other way in the Wisconsin case.

[Supreme Court rejects extension for mail-in ballots in Wisconsin]

“While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes,” he wrote. “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.”

The court’s liberals have made it clear they think accommodations that protect the franchise are important no matter who imposes them. In the Wisconsin case, Justice Elena Kagan wrote for colleagues Stephen G. Breyer and Sonia Sotomayor: “On the scales of both constitutional justice and electoral accuracy, protecting the right to vote in a health crisis outweighs conforming to a deadline created in safer days.”

But Roberts is an outlier from fellow conservatives as well.

Justices Clarence Thomas, Samuel A. Alto Jr., Neil M. Gorsuch and Brett M. Kavanaugh all have endorsed a view that the Constitution’s command that the “legislature” design the rules of elections means that state courts and agencies do not have a free hand in making changes to state laws. And that the federal courts have a role in overseeing state courts on issues of state law.

That is a position that received only three votes when the Supreme Court in 2000 decided Bush v. Gore. But in the Wisconsin case, Kavanaugh noted that concurring opinion, which was endorsed at the time by Thomas.

“As Chief Justice Rehnquist persuasively explained in Bush v. Gore, the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.”

[Kavanaugh’s Bush v. Gore citation draws scrutiny in advance of another divisive election]

The other justices also have endorsed the supremacy of the state legislature. “The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules,” Gorsuch wrote.

Alito, joined by Thomas and Gorsuch, wrote that it was too late to take up the Pennsylvania case before the election, but said it raised issues that could bear examination after the election.

“There is a strong likelihood that the state Supreme Court decision violates the Federal Constitution,” he wrote. He said the constitutional power given to state legislatures to decide the rules of federal elections would be undermined by the view that “a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.”

Those strong endorsements of the legislatures’ powers could be meaningful in post-election disputes. Many of the cases at the court have come from states where Democrats control the governor’s office, but Republicans control the legislature.

The divisions on the court could put new Justice Amy Coney Barrett in a pivotal spot.

She did not participate in the cases from Pennsylvania and North Carolina, having just started work Tuesday.

She authorized the court’s spokeswoman to explain that Barrett did not participate “because of the need for a prompt resolution and because she has not had time to fully review the parties’ filings.”

Justices decide for themselves when to recuse, but it is extremely rare for one to give a reason. It might have been a signal from Barrett that she does not intend to sit out all cases arising from the 2020 election, a pledge Democratic senators tried unsuccessfully to get her to take.

President Trump has said it was necessary to fill the spot of the late Justice Ruth Bader Ginsburg before the election so the justice could break any ties in subsequent litigation.

Soon enough it will be clear whether that’s a role Barrett intends to fill.

a woman standing next to a man in a suit and tie: Supreme Court Chief Justice John G. Roberts Jr. administers the judicial oath of office to Judge Amy Coney Barrett as her husband, Jesse Barrett, holds the Bible in the East Conference Room of the Supreme Court Building in Washington on Oct. 27. © Handout/U.S. Supreme Court/Reuters Supreme Court Chief Justice John G. Roberts Jr. administers the judicial oath of office to Judge Amy Coney Barrett as her husband, Jesse Barrett, holds the Bible in the East Conference Room of the Supreme Court Building in Washington on Oct. 27.

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