The fiction of strict constructionist judges has been sharply illustrated in the move of the U.S. Supreme Court to set about preventing state courts from interpreting state election laws and state constitutions.

A 4-4 split prevented a Republican challenge to a Pennsylvania court decision (interpreting the Pennsylvania constitution) that made it easier to vote by mail during the Constitution. But the Republicans are trying again suppress Pennsylvania votes and with “textualist” Amy Coney Barrett now aboard — and with Donald Trump and Mitch McConnell have expressed their expectation she’ll help in election cases — that may soon be reversed.


Things already got worse yesterday with a 5-3 Supreme Court decision (the chief justice came over in this case) preventing Wisconsin from counting absentee ballots mailed before the polls closed but delayed in delivery by the Trump-crippled U.S. Postal Service. Some 80,000 such votes were counted in the Wisconsin primary, three times Trump’s margin in the state in 2016. The number could be far higher this year thanks to pandemic-inspired absentee voting.

Scarier still was Trump Justice Brett Kavanaugh’s invocation of Bush v. Gore (remember that was NOT supposed to set a precedent in an opinion echoed by Neil Gorsuch and a radical theory also favored in the past by Clarence Thomas.


The Wisconsin case differed a bit from Pennsylvania. Here, the U.S. Supreme Court said a federal court shouldn’t have issued an order allowing the counting of ballots. That wasn’t particularly surprising given recent rulings aimed at preventing lower federal courts from easing voter access in the states. Wrote Vox:

What is surprising, however, is two concurring opinions by Justices Neil Gorsuch and Brett Kavanaugh, each of which takes aim at one of the most foundational principles of American constitutional law: the rule that the Supreme Court of the United States has the final word on questions of federal law but the highest court in each state has the final word on questions of state law.

This division of power is implicit in our very system of government. As the Supreme Court has explained, the states and the federal government coexist in a system of “dual sovereignty.” Both the federal government and the states have an independent power to make their own law, to enforce it, and to decide how their own law shall apply to individual cases.

If the Supreme Court of the United States had the power to overrule a state supreme court on a question of state law, this entire system of dual sovereignty would break down. It would mean that all state law would ultimately be subservient to the will of nine federal judges.

Nevertheless, in Democratic National Committee, both Gorsuch and Kavanaugh lash out at this very basic rule, that state supreme courts have the final say in how to interpret their state’s law, suggesting that this rule does not apply to most elections.

They also sent a loud signal, just eight days before a presidential election, that long-settled rules governing elections may now be unsettled. Republican election lawyers are undoubtedly salivating, and thinking of new attacks on voting rights that they can launch in the next week.

These judicial activists say the Constitution commands that only the legislatures may set voting rules, not judges. And any checks and balances provided by state Constitutions to allow state courts to interpret what statutes mean? On the garbage heap. This is legislating for the states from the highest bench in the land by so-called “federalists.”


Is the conservative majority, with Barrett, prepared to step in to help Trump?

Politico suggests that Kavanaugh is setting the table for intervention.

Justice Brett Kavanaugh conjured up the specter of such a protracted battle as he argued in favor of allowing states to maintain firm deadlines requiring absentee ballots to be received by election officials on Election Day.

“Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election,” Kavanaugh wrote in a concurring opinion released Monday night. “And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.”

I wonder. Would the Supreme Court issue an emergency order sending voters home who remain in line after midnight Nov. 3? My nephew waited until 4 a.m. on a presidential election day 8 years ago in Ohio because the Republican election bosses reduced the polling places in his liberal academic enclave to one because the turnout of Obama voters was expected to be enormous.

Elections frequently drag on. In Arkansas, we had a recent state legislative race decided 10 days after the polls closed with the arrival of a single ballot cast by a military voter. Because this presidential election is extraordinary thanks to the pandemic and Trump vote suppression efforts, it doesn’t mean that the process shouldn’t run its course even if the conflicts are larger in scale. (Just as, in Florida, the state precedent providing for a full state recount shouldn’t have been stopped by the U.S. Supreme Court on the grounds for the need of a quicker resolution.)


Trump is already saying any results that come in after election night should be considered illegitimate. Amy Barrett can read the newspap as if she needs added instruction on expectations for her. She already demonstrated her fealty by participating in a flag-bedecked swearing-in ceremony that resembled a political rally.

If a Republican Supreme Court steals another election with the help of Mitch McConnell’s Supreme Court-packing scheme (by a Senate vote that, like the Electoral College vote, represented a minority of U.S. voters, it will create far more than the “suspicion” of impropriety. And chaos? See what whirlwind we’ll reap from minority rule by an autocrat.

Wisconsin activists are now urging people to stop mailing absentee ballots and to use drop boxes (if they aren’t being torched) or vote early or stand in line election day. Good advice in Arkansas, too. The country is on the line.

UPDATE: Re Kavanaugh and Bush v. Gore, a case on which he labored as a Bush lawyer:

However, in Bush v. Gore — the Supreme Court decision that handed the presidency to a man who lost the popular vote — a younger Kavanaugh argued it would be unfair if ballots received after election day were not counted.

  • Kavanaugh was on the legal team that “argued during that contested election that ballots arriving late and without postmarks, which were thought to benefit Bush, must be counted in Florida,” Salon noted on Tuesday.
  • In 2001, The New York Times laid out how Bush’s team went about ensuring his presidential win.

On the morning after Election Day, George W. Bush held an unofficial lead of 1,784 votes in Florida, but to his campaign strategists the margin felt perilously slim. They were right to worry. Within a week, recounts would erode Mr. Bush’s unofficial lead to just 300 votes.

With the presidency hanging on the outcome in Florida, the Bush team quickly grasped that the best hope of ensuring victory was the trove of ballots still arriving in the mail from Florida residents living abroad. Over the next 18 days, the Republicans mounted a legal and public relations campaign to persuade canvassing boards in Bush strongholds to waive the state’s election laws when counting overseas absentee ballots.

Their goal was simple: to count the maximum number of overseas ballots in counties won by Mr. Bush, particularly those with a high concentration of military voters, while seeking to disqualify overseas ballots in counties won by Vice President Al Gore.


Also excellent analysis here in Vanity Fair.