It is better to prevent a preventable disaster than run the risk of being consumed by it.
It is better to prevent a preventable disaster than run the risk of being consumed by it.
I n the era of stewardship by Chief Justice John Roberts, the Supreme Court has fretted more about the public perception of the Court as a non-partisan institution than about doing what is most necessary to shore up its reputation: Do its job. Decide the tough questions in accordance with what the law requires, and stop worrying so much about what it looks like.
The justices have no way of controlling how their work is perceived. The federal courts are insulated from politics by design, because the right answer is frequently not the popular answer. Indeed, as our Michael Brendan Dougherty deftly explained this week, to the extent the Roberts project of making a reputedly conservative-leaning Court seem benign to Democrats was intended to stave off such ruin as court-packing, it has succeeded only in “inviting the very escalation it was calculated to avoid.” Moreover, as Judge Amy Coney Barrett pointed out in her confirmation hearing testimony, the judicial modesty preferred by conservative jurists is not in the service of conservative policy preferences; it serves the people’s freedom to live as they choose. It would allow for many democratically enacted outcomes that would rankle conservatives — they just need to be enacted by Congress, not imposed by judicial fiat.
All that said, as one would expect with a jurist as smart as Roberts is, his concerns are not unfounded. The legitimacy of the Court depends not only on doing justice but appearing to do justice. Yes, emphasizing the former is the best way of tending to the latter. But we mustn’t deceive ourselves into assuming proactive measures are never called for. Sometimes, you can see a disaster coming from a mile away. Even though it is normally best for judges to be passive until it is truly necessary to intervene, it is better to prevent a preventable disaster than run the risk of being consumed by it.
That’s why the Supreme Court needs to decide election law cases now, not after November 3.
The rudimentary questions that need to be decided are obvious. And I am not suggesting that the Court act illegitimately by issuing an advisory opinion; there are concrete cases that are ripe for resolution. It is imperative that the justices address them now, when the reality and the overwhelming public perception would be that the Court is simply deciding procedural issues attendant to voting.
If they wait until after November 3, and these issues are still pending, it will mean there is a raging controversy over who won the presidency. At that point, the Court would be perceived as deciding the election. No one should want that — not the Court, not the candidates, not the nation.
The main question that has to be decided is: What is Election Day? That determines when we must vote.
Living with the fallout of the coronavirus pandemic is infinitely challenging. In connection with the electoral process, COVID-19 raises the obvious problems of the potential for transmitting the virus in a physical polling place; the greater peril posed to the elderly and those with certain preexisting conditions; and the processing of an unprecedented deluge of mail-in ballots. Unavoidably, though, these difficulties present themselves because we must have an election.
November 3 is not an “arbitrary deadline,” as suggested by some (including some who wouldn’t mind gaming the system). It is the election. It is the date fixed by Congress for voting across the country to take place.
The Constitution gives the states a great deal of discretion regarding the manner in which elections are conducted. The states’ discretion, however, is not limitless. The election is November 3. Whatever time frame the states allow for early voting, whatever procedures they prescribe for authenticating legitimate mail-in ballots, the voting has to be concluded on November 3. The Constitution states that it is for Congress to determine “the Time of chusing the Electors” — in modern parlance, for conducting in each state the presidential election, which results in the selection of the slate of electors that casts the state’s votes in the Electoral College. The states have no authority to alter that date.
Some, however, are trying. What has happened in Pennsylvania is illustrative.
The Pennsylvania Supreme Court is enmeshed in politics. Its members are elected, not appointed, for ten-year terms. A few weeks back, in a 4-3 ruling along partisan lines with Democrats in the majority, the court nullified the mandate, duly enacted by the state’s legislature, that mail-in ballots “must be received in the office of the county board of elections no later than eight o’clock P.M. on the day of the primary or election.”
The Constitution and federal law, as the Supreme Court has observed, vests discretion to set election rules in the state legislatures, not the state courts. And as even the Pennsylvania court conceded, it was within the legitimate power of the state’s General Assembly to set this deadline. There was no ambiguity about it, nor any legal infirmity.
Yet, the court’s Democratic judges dictated a three-day extension of the lawful deadline for counting mail-in ballots. The vehicle for this act of willful usurpation was a lawsuit brought by — surprise! — the Pennsylvania Democratic Party. The state court’s majority invoked a hurl-it-at-the-wall-and-see-what-sticks combination of rationales, said to flow from COVID: natural disasters, emergency situations, and a loopy construction of the state constitution’s “Free and Equal Elections Clause” — theorizing that since the virus does not affect all people the same way, provisions the legislature makes to deal with it somehow render elections unfair and unequal.
The ruling is not merely a judicially legislated extension; it effectively permits voting after the Election Day set by Congress. The Pennsylvania court requires election officials to presume that any ballot received by its extended deadline must be counted, even if it lacks postmark proof that it was mailed on or before November 3. In effect, it green-lights voting after Election Day, even as the national media is reporting the results of a contest that is supposed to be over. For these reasons, the state’s Republican Party has asked the Supreme Court to stay the state court’s ruling to the extent that it permits voting after Election Day.
The Supreme Court adheres to the co-called Purcell principle — arising out of its 2006 ruling in Purcell v. Gonzalez — that courts must not change the rules for an election late in the game. Purcell is being flouted, and not just in Pennsylvania.
In Wisconsin, Judge William Conley, an Obama-appointee on the federal district court, presumed to rewrite a number of state-law election-related deadlines, including extending the deadline for counting absentee ballots until November 9. In his wisdom, Judge Conley caveated that ballots should only be counted if they are mailed in by Election Day, November 3. That sounds fine in theory; in practice, there are certain to be heated disputes about when ballots were mailed.
In any event, on October 8, the Conley directives were undone by the Seventh Circuit federal appeals court (Judge Barrett’s court, though she was not involved in the case). The Circuit aptly reasoned that (a) the district judge flouted the Purcell principle, and (b) it is for the political branches, not the judiciary, to decide when election rules must be altered due to a pandemic. Nevertheless, a group of progressive activists (“Black Leaders Organizing for Communities,” backed by the Left’s familiar funding network) has asked the Supreme Court to reinstate Conley’s order.
The Supreme Court is in command of its own docket. It need not agree to hear either of the cases. But the justices would be crazy not to take at least one, if not both, within the next week.
In April, after the onset of the pandemic, the high court intervened in a similar Wisconsin case, as Democrats and Republicans squabbled over the primary election. Judge Conley had not only extended by a week after Election Day the deadline for mail-in ballots to be received by state election officials; he had further ordered that votes be counted even if they were mailed after Election Day.
The Supreme Court stayed Conley’s order. But the justices were deeply divided: All four liberal bloc justices (including the now-deceased Justice Ruth Bader Ginsburg) dissented from the unsigned opinion by the five-justice majority. The majority concluded that to permit people to keep voting after Election Day, as news of the election results circulated, “would gravely affect the integrity of the election process.” Yet, its opinion took pains to emphasize that it was forbidding the counting of post-election mail-in ballots because Judge Conley had ordered it unilaterally — i.e., there had been no request for that relief. Weirdly, this suggests that if a party had asked for it, the Court might have approved post-Election Day voting, even though doing so would have undermined election integrity.
Again, that case was strictly about a primary in one state. Now, the national Election Day is at stake. At this point, to permit a battleground state’s voters to keep voting after the date set by Congress would undermine the legitimacy of the nation’s election of a president.
The Court should grab these cases from Pennsylvania and Wisconsin and decide them now –before Judge Barrett becomes Justice Barrett. The best resolution would be to make clear that all voting has to be completed by Election Day. Moreover, while it may be reasonable in light of the pandemic to permit states to count ballots after Election Day, there must be convincing evidence that the ballots were cast by or before Election Day.
Even if the Court were not to see things my way, the most important thing is that the rules of the game, whatever they are to be, must be set in stone before it is played. Lower federal courts and state governments (including state courts) must understand that they are not at liberty to rationalize that COVID means anything goes.
Maybe the outcome of the election will be sufficiently clear that the Supreme Court will not have to get involved. But the justices cannot bank on that possibility. Intervening before the election would not guarantee that there would be no need to do so afterwards; but it would show the public that the Court was doing the best it could to settle the law without entanglement in the politics. If the justices do not intervene until after Election Day, any ruling they make will inevitably be seen as deciding the election in favor of one candidate or the other. That would be disastrous. As the Bush-Gore 2000 election showed, it is not always possible to avert disasters. But that one was unexpected. This is one you can see coming.
Sometimes the Court worries about its reputation to the point of doing its job poorly. This is a time for the Court to safeguard its reputation by doing its job now.