Court Poised to Decide Presidential Election?

           The Supreme Court has put itself in position to determine the winner of Tuesday’s presidential election, just as the Court did twenty years ago in Bush v. Gore, to its lasting discredit. At worst, the Republican-majority Roberts Court could be remembered, just as the previous Court is remembered, for making it impossible to ascertain the true winner of a hotly contested presidential election.

            The best hope for the Roberts Court to avoid being caught in a partisan cat-fight is a decisive popular vote mandate for the Democratic nominee, Biden. An overwhelming national vote count, along with decisive margins in battleground states, might render moot the various legal challenges to late vote-counting that President Trump and his supporters seem certain to file in blue-voting states.

            In dealing with a succession of election procedure cases over the past six weeks or so, the Supreme Court has lost sight of what should have been the overarching ratio decidendi—the importance of ensuring that “every vote counts,” just as the pre-Election Day public service announcements tell us. Instead, the justices have allowed accommodations for voters in some cases and disallowed them in others, based on formalistic distinctions rather than the need to strengthen and protect the constitutionally protected right to vote at a time when in-person voting turns crowded public gatherings such as voting lines into a serious risk to personal health.

            The likelihood of deciding Tuesday’s election in the courts instead of at the ballot box increased with a lawsuit filed late last week [Oct. 28] by Texas Republicans seeking to throw out up to 100,000 ballots cast in curbside voting in predominantly Democratic Harris County, which includes the nation’s fourth largest city, Houston. The Republican plaintiffs in Hotze v. Hollins—a GOP state legislator, a Republican candidate for Congress, and two voters—contend in their complaint that the Harris County clerk Chris Hollins violated state and federal law by allowing indiscriminate drive-through curbside voting, which they say is not a legal “polling place” under state law nor permitted by any of Texas’s other 253 counties.

            With contact-less meal delivery now the norm in the midst of the novel coronavirus pandemic, Hollins explained his decision as a way for voters to cast ballots from the safety of their own car.  and thus avoid the risk of contacts with Covid-exposed voters in long lines of the sort seen in many jurisdictions across the county as early voting has spiked to record levels. Hollins contends he got authority for the procedure from the Republican secretary of state, but the Hotze plaintiffs note accurately that the Texas Supreme Court rejected the procedure unless the would-be drive-thru voter met specific conditions listed in state law.

            The GOP plaintiffs got a generous serving of home-cooking when the case was assigned to a federal judge, Andrew Hanen, who has an established reputation as one of the most partisan Republican jurists not just in the Lone Star State but in the entire country. The plaintiffs cite Bush v. Gore itself to show that Hollins’ decision to permit a voting procedure adopted nowhere else in the state violates the Equal Protection Clause’s supposed guarantee for uniform election procedures throughout an individual state.

            Democrats and their voting rights allies were cheered by two Supreme Court decisions last week [Oct. 28] allowing extended deadlines for mailed ballots in two battleground states, North Carolina and Pennsylvania. The 5-3 decisions in the two cases—Moore v. Circosta and Republican Party of Pennsylvania v. Boockvar—turned apparently on a jurisdictional line: state officials themselves had allowed the extended deadlines, the chair of the state board of elections in the North Carolina case and the secretary of state in Pennsylvania. Roberts and Kavanaugh cast pivotal votes to allow the extended deadlines, with their harder-line conservative colleagues in dissent: Thomas, Alito, and Gorsuch.

            The Court on the same day blocked extended deadlines for mail ballots in Wisconsin by staying a federal district court judge’s order to give more time for ballots to reach vote-counting election offices. The 5-3 vote in Democratic National Committee v. Wisconsin State Legislature pitted the five conservatives against the three liberal justices in dissent: Breyer, Sotomayor, and Kagan. Roberts explained the at-variance results in the day’s cases by contending in a one-paragraph opinion that the federal court’s intervention in the Wisconsin case was “improper” while the other two cases “implicated the authority of state courts to apply their own constitutions to election regulations.”

            In an 18-page opinion explaining his own vote in the Wisconsin case, Kavanaugh warned that the public may lose confidence in an election result if late-counted ballots “flip” the apparent Election Night result. Rick Hasen, the prominent election law expert at the University of California-Irvine, aptly accused Kavanaugh of adopting a “Trumpian mindset” in his opinion by casting doubt on any ballots counted after Election Night.

In a 12-page dissenting opinion, Kagan refuted Kavanaugh’s premise by noting that “there are no results to ‘flip’ until all votes are counted.” She argued that public confidence in the election was at greater risk from the likely discarding of thousands of ballots cast by voters in a timely fashion but delivered only belatedly because of delays in mail service.

            Together, the Supreme Court’s decisions in effect give Trump a roadmap to contesting state by state results in Tuesday’s voting and subsequent ballot-counting: file the suits in federal courts instead of in state courts. A federal judge’s ruling to count challenged ballots will get little deference at One First Street, especially after Trump’s third appointed justice, Amy Coney Barrett, settles in and gives the Republicans a hard-to-block 6-3 majority.