PORTLAND, OR - OCTOBER 14: Pallets filled with Washington and Oregon mail-in ballots fill an unloading area at a U.S. Postal Service (USPS) processing and distribution center on October 14, 2020 in Portland, Oregon. USPS workers in Portland began processing and mailing about 1.5 million ballots this week ahead of the November election.  (Photo by Nathan Howard/Getty Images)
As the election gets closer, who's winning the legal war over voting?
04:54 - Source: CNN

Editor’s Note: Joshua A. Douglas is a law professor at the University of Kentucky J. David Rosenberg College of Law. He is the author of Vote for US: How to Take Back Our Elections and Change the Future of Voting. Follow him on Twitter @JoshuaADouglas.

CNN  — 

The Supreme Court on Monday rejected on a 4-4 vote a Republican ploy to have the Court intervene in a case from the Pennsylvania Supreme Court – and therefore potentially every election law dispute in the country. But far from a major Democratic win, the decision could spell bad news for the future of voting rights protections. The implications of this decision, with Judge Amy Coney Barrett waiting in the wings to cast the tiebreaking vote in a similar case if – as expected – the Senate confirms her nomination to be a justice, are enormous.

Joshua A. Douglas

Pennsylvania Republicans had challenged a voting rights ruling rendered by the Pennsylvania Supreme Court under the Pennsylvania Constitution to extend the state’s absentee ballot deadline. After losing at the state supreme court, they appealed to the US Supreme Court.

Normally, a state supreme court has the last word on state laws. So the Pennsylvania Supreme Court’s decision should have ended the matter. The US Supreme Court’s 4-4 decision rejected the appeal, but if the Court had accepted the Pennsylvania Republicans’ argument, we would have been in for a whole new wave of federal judicial oversight over election rules. That would spell bad news for state constitutional protection for the right to vote, which is broader than the safeguards afforded under the US Constitution. It could have also thrown Election Day and any post-election disputes into further chaos.

The Court declined that invitation with its 4-4 tie. Chief Justice John Roberts voted with the three liberal justices, but the four most conservative members of the Court, Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh, would have granted the request. Add expected-to-be Justice Barrett as the fifth vote, and the Supreme Court’s doors could be wide open to undermine the protections for the right to vote embedded within state constitutions.

The US Constitution does not affirmatively grant the right to vote. Instead, the founding document construes the right to vote in the negative: states may not deny the right to vote based on certain characteristics, including race, sex, inability to pay a poll tax and age. In addition, the US Supreme Court has recognized the right to vote under the federal Equal Protection Clause, albeit, in my opinion, too narrowly.

State constitutions, on the other hand, more robustly protect the right to vote. Forty-nine of the 50 state constitutions affirmatively grant the right to vote by saying that citizens “shall be qualified to vote,” “shall be entitled to vote” or similar language (only Arizona’s does not). In addition, about half of the state constitutions have a provision saying that elections shall be “free,” “free and open,” or “free and equal.”

Pennsylvania’s constitution includes a “free and equal” clause, and the state supreme court has invoked that provision to provide more protection to the right to vote than federal courts do under the US Constitution. The Pennsylvania Supreme Court had issued a ruling that extended the absentee ballot receipt deadline to November 6, three days after Election Day, so long as the ballots were postmarked by November 3 or, for ballots without a postmark, there was no evidence that they were mailed after Election Day.

Normally, the state supreme court would have the final say on state law. But Republicans made a bold argument: the Pennsylvania Supreme Court’s decision unconstitutionally took away power from the state legislature. Article II of the US Constitution provides that states shall appoint presidential electors “in such Manner as the Legislature thereof may direct.” Similarly, Article I of the US Constitution grants authority to state legislatures to determine the “times, places, and manner” of holding congressional elections, subject to congressional oversight.

The Pennsylvania Republicans argued that the Pennsylvania Supreme Court’s decision, which altered the statutory language to extend the absentee balloting deadline because of the pandemic, effectively took away the power of the state legislature to determine the “manner” of running elections.

Three justices bought into a similar argument in 2000 in Bush v. Gore. Chief Justice William Rehnquist, along with Justices Scalia and Thomas, argued that the Florida Supreme Court’s decision in that case was so out of bounds that it took away authority from the state legislature to determine the “manner” of appointing presidential electors. But the other two conservative justices in the 5-4 majority did not sign on to that opinion.

A vote from a new Justice Barrett, who might eventually agree with her fellow conservatives on this point, could open the floodgates to the US Supreme Court potentially regulating every aspect of the election process. Any decision from a state court that involves a federal election – which is to say, virtually all rulings from state courts about any aspect on how we vote – would be subject to federal oversight.

State legislatures, however, are created by state constitutions, so surely the laws they pass must also comport with those principal documents. A state judicial decision would violate the “manner” of appointing electors only if the ruling completely changes the method that state legislatures have selected for appointing presidential electors. All state legislatures have chosen a vote of the people as the “manner” of appointing presidential electors. A ruling that simply tweaks that statutory scheme to be consistent with the state constitution to protect the right to vote, but keeps the basic method of voting in place, does not run afoul of the US Constitution’s grant of authority to state legislatures.

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    The importance of the Supreme Court’s decision, however, goes beyond the technical legalese of whether a state supreme court is allowed to have the final say on the meaning of state law under the state constitution – though plainly it should. It is also about whether the US Supreme Court is willing to insert itself into every election law dispute throughout the country.

    The new conservative Court could have full power to rule on all election cases – under not only the US Constitution but also all 50 state constitutions – to ensure conservative rulings on all election law cases for this year and beyond. That result would severely undermine the stronger protection of the right to vote within state constitutions.