This Time, Roberts Sides with Conservatives to Blunt Election-Rule Tinkering

T here are strict constructionists, but who knew Chief Justice John Roberts was a strict federalist?

That is one takeaway from the Supreme Court’s ruling Monday night, rendered as Justice Amy Coney Barrett’s nomination was being approved by the Senate. In a 5–3 decision, the Court declined to endorse a federal district judge’s rewrite of Wisconsin State election law. This time, the chief justice joined the Court’s four conservative justices — Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — leaving the three liberals in the minority, with Justice Elena Kagan’s dissent joined by Justices Stephen Breyer and Sonia Sotomayor).

This was in marked contrast to the Court’s 4–4 deadlock a week earlier in a Pennsylvania election-law case, where a state court’s rewrite of the state’s election law was permitted to stand because Roberts joined the three liberals. (See my earlier column on the Pennsylvania and Wisconsin cases.)

The new case is Democratic National Committee v. Wisconsin State Legislature. The Court’s ruling prevents a federal judge from forcing the state to extend for six days following the November 3 election the deadline for receiving ballots (i.e., ballots would be counted until November 9, as long as they were postmarked on or before Election Day). This is very similar to what happened in the Pennsylvania case, where the state supreme court altered the deadlines. In his concurrence, however, Roberts invokes the primacy of state sovereignty in contending that the Wisconsin and Pennsylvania situations are different.

On The McCarthy Report podcast last week, Rich and I explored this question and I opined that the state/federal distinction was not the main issue. I argued that the dispositive points are (a) deference to state legislatures as opposed to courts (regardless of whether they are federal or state courts), and (b) adherence to the Supreme Court’s Purcell doctrine, which holds that election rules may not be altered close to the time of the election (or, as here, when the election is already underway, via mail-in voting).

I still think this is right, but Roberts — in his one-paragraph opinion, which no other justice joined (at least not expressly) — says the federal/state distinction makes all the difference to him. A cynic might suggest that he is inflating the importance of a trivial distinction in order to rationalize his inconsistency, which is more easily reconciled by his institutional objective to minimize the Court’s involvement in the election — which, he no doubt recognizes, will be harder to do with Justice Barrett becoming the ninth justice and likely being sympathetic to originalist arguments against judicial tinkering with state election laws.

The chief justice observes that “different bodies of law and different precedents” are operative depending on whether it is a federal or a state court endeavoring to change state law. Perhaps. But in directing how states must choose the electors who cast its votes in presidential elections, the Constitution itself (art. II, sec. 1, cl. 2) states (my italics):

Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress[.]

Moreover, in addressing “the times, places and manner of holding elections for Senators and Representatives,” the Constitution (art. I, sec. 4, cl. 1) also leaves that up to the decision of “each state by the legislature thereof,” with the only exception being that “Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.”

Our fundamental law unambiguously puts state legislatures in charge of elections, with Congress having control over various essential aspects of federal elections, such as when they are held. There is no role given to the courts, at the federal or state level. Obviously, if a state legislature enacted an election law that was in some way unconstitutional, a court could be asked to rule on that. But as long as the relevant state-legislative enactments are lawful — and no one, including the reviewing courts, claims that the election laws of Pennsylvania and Wisconsin are infirm — then judges, whether state or federal, have no business fiddling with them.

This was the principle forcefully asserted in a concurring opinion filed by Gorsuch and joined by Kavanaugh.

The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules…. And the Constitution provides a second layer of protection too. If state rules need revision, Congress is free to alter them…. Nothing in our founding document contemplates the kind of judicial intervention that took place here, nor is there precedent for it in 230 years of this Court’s decisions.

Justice Kavanaugh also wrote a comprehensive concurrence (which no other justice expressly joined), laying out three rationales for prohibiting the alteration of election rules.

The first is the Purcell doctrine (drawn from the Court’s 2006 decision in Purcell v. Gonzales), which holds that the rules may not be changed in the period close to the election. As Kavanaugh explains, elections are solemn and administratively complex, such that even “seemingly innocuous late-in-the-day judicial alterations” can cause unanticipated problems. Thus, such alterations are to be avoided.

Second, making rules to deal with the ramifications of infectious disease, such as the COVID-19 pandemic, is principally the job of elected representatives who are politically accountable to the people burdened by the rules. In a nod to Roberts’ federalism concerns, Kavanaugh instructs that these rules “should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people.” Here, Kavanaugh further notes that state legislatures have made accommodations to balance concerns over COVID-19 with those related to the integrity of elections. Therefore, a legislature’s decision not to permit or encourage late voting and ballot-counting that continue for days after an election is a policy choice that federal judges must respect.

Finally, Kavanaugh makes the commonsense point that elections cannot be conducted without deadlines. These deadlines are significant and, as long as they are reasonable, they must be honored. This principle is in marked contrast to Kagan’s dissent, which — besides endorsing judicial rewrites of state law — makes much of the fact that a state’s setting of deadlines could result in votes not being counted. Kavanaugh acknowledges that this is true . . . because it is always true.

All elections involve deadlines, and state laws afford voters a variety of ways to vote comfortably in advance of them. No matter what deadlines are set, though, and no matter what rationales are offered for changing them (this time, it’s COVID-19, next time it will be something else), some voters inevitably miss the deadlines. The question, therefore, is not whether some votes will go uncounted; it is whether the state legislatures have set reasonable conditions. Wisconsin has done so.

On that score, I would point out that if COVID-19 were the main concern, it would make at least as much sense to have moved up the deadline for submitting mail-in and absentee ballots, rather than pushing it back, which would promise chaotic conditions and opportunities for mischief. In any event, Kavanaugh stresses that these are decisions for legislatures to make.

To summarize, as Justice Barrett joins the Court, there appear to be at least four justices (Thomas, Alito, Gorsuch and Kavanaugh) inclined to hold that the Constitution expressly commits to state legislatures, not courts at either the federal or state level, the setting of rules for elections. I suspect that Barrett would be sympathetic to this position, which draws on the text and the original understanding of the Constitution. Roberts, meanwhile, has staked out a position against (a) the altering of state laws by federal judges, and (b) COVID-19 as a rationale for judicial tinkering with legislative decisions balancing health concerns against other public policy concerns. Only the Court’s three liberals appear open to the use of COVID-19 as a justification enabling courts to change state election laws in a manner that could maximize post-election chaos.

With that, I continue to hope that the Court will agree to review the Pennsylvania election-law case, which it punted on a week ago when the state Republican Party asked the justices to stay the state supreme court’s extension of the deadline for receiving ballots. On Friday, the GOP petitioned the Court to rule on the merits of the case, and to do so prior to Election Day.