Since it is clear that Trump’s only chance to win is by vote suppression and inappropriate intervention in the counting process by “his” Supreme Court, let’s review where we stand on the four big issues today:
- CAN FEDERAL COURTS, AS A MATTER OF FEDERAL LAW, OVERRIDE STATE LAW AND REQUIRE STATE AUTHORITIES TO EXTEND VOTE RECEIPT DEADLINES TO ADDRESS ISSUES CREATED BY THE PANDEMIC? The definitive answer to that question is no. There are two grounds for this: federalism concerns; and the desire to avoid chaos and provide a winner on or around Election Day. The Supreme Court’s position on this issue can be viewed as harsh and dogmatic, but it is legally defensible. The problem is that the two threads supporting it dictate different results in different situations, as we will see below.
- DOES THE SUPREME COURT HAVE THE AUTHORITY TO OVERRIDE STATE COURTS AND OFFICIALS WHO EXTEND VOTE RECEIPT DEADLINES TO ADDRESS ISSUES CREATED BY THE PANDEMIC USING STATE LAW? This is a much thornier question; we know the Court is divided, and we don’t have a definitive answer, because Barrett hasn’t weighed in yet. The actual decisions thus far have narrowly favored the Democrats. Note that the two threads described above lead in different directions here: federalism concerns, which almost always dictate federal deference to state courts, support the Democrats; while the chaos rule supports Republicans.
- WHAT WILL THE COURTS DO, IF ANYTHING, TO ADDRESS WIDESPREAD VOTER INTIMIDATION? That depends on whether it happens on Election Day. We won’t know until then. Don’t hold your breath waiting for effective judicial action on that front.
- DOES THE SUPREME COURT, AS A MATTER OF FEDERAL LAW, HAVE THE OBLIGATION TO ORDER THE STATES TO STOP COUNTING BALLOTS THAT CLEARLY WERE CAST LEGALLY UNDER STATE LAW AFTER NOVEMBER 3? This is the really important question that could determine the outcome of a close election. We know Trump will raise it. It is clearly frivolous, from a legal perspective, but we know that Thomas and Alito are both partisan hacks who will do anything to keep Trump in office, and a recent opinion by Kavanaugh contains language which suggests he may have some sympathy for it, although the actual decision in that case addresses different facts, so we don’t know for certain. If Kavanaugh and Gorsuch support Trump, it will come down to Barrett. That’s a scary proposition at more than one level.