Supreme Court referees spate of election battles: What their decisions say about how elections are regulated
Washington — The coronavirus pandemic and its impact on voting in the primaries and general election have made the Supreme Court the referee in a spate of legal battles between state election officials and the political parties and campaigns, with Republicans and Democrats alike turning to the court for last-minute relief as Election Day ticks closer.
Since April, as states altered their election procedures in response to the pandemic, giving rise to court challenges, the justices have responded to at least a dozen disputes over efforts to ease voting rules in states from coast to coast. And in the last two weeks alone, the Supreme Court issued a head-spinning number of orders in challenges to extended deadlines for officials to receive and count mail-in ballots in three battleground states: North Carolina, Pennsylvania and Wisconsin.
In most instances where emergency action has been sought, the Supreme Court's conservative members have spurned efforts by lower courts to ease election rules in the lead-up to November 3, arguing state election officials and legislatures have the authority to regulate elections, not federal judges. By contrast, the court's liberal justices, Stephen Breyer, Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg, before her death in September, have favored loosening rules for voting and the administration of elections.
The deciding vote has often fallen to Chief Justice John Roberts, Jonathan Adler, a professor at the Case Western Reserve University School of Law, noted. He said Roberts' jurisprudence suggests "he has a fair amount of skepticism toward aggressive judicial intervention, and that's meant he's tended to vote against federal courts intervening precipitously."
Because Roberts has tended to be the deciding vote, "the pattern has largely been dictated or determined by the preferences of the chief justice," Adler told CBS News. "And he has generally erred on the side of less judicial intervention."
The Supreme Court now has a 6-3 conservative majority with the confirmation of Justice Amy Coney Barrett on Monday, though Barrett did not participate in consideration of the cases before the court earlier this week.
Here is a closer look at the states and election disputes that ended up before the justices.
Wisconsin
The Supreme Court's first order on election changes spurred by the coronavirus pandemic came in April after Wisconsin Republicans and the Republican National Committee asked the justices to curtail extended absentee voting for the primaries.
The high court, divided along ideological lines, granted the request from Republican lawmakers to halt the ruling from a federal judge that extended the state's deadline to return absentee ballots by six days.
Then, on Monday, the Supreme Court declined to reinstate a lower court order allowing absentee ballots postmarked by Election Day and received within six days of November 3 to be accepted.
The court split 5-3, with Justice Brett Kavanaugh's separate opinion gaining attention for his references to Bush v. Gore, the 2000 Supreme Court decision that effectively handed President George W. Bush the White House.
In his own opinion, Roberts explained the difference between his votes in an earlier Pennsylvania case and the Wisconsin dispute.
"While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes," the chief justice wrote. "Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin."
Pennsylvania
Pennsylvania Republicans have twice gone to the Supreme Court over a Pennsylvania Supreme Court decision extending the deadline for absentee ballots to be received and accepted to November 6 if they were postmarked by Election Day.
Last week, the Supreme Court left the extension in place with a 4-4 vote on a request from Pennsylvania GOP lawmakers to block the state supreme court decision lengthening the deadline by three days.
Joshua Douglas, a professor at the University of Kentucky College of Law, said the case raised red flags for him, as the four conservative justices signaled they were willing to review a state court decision under a state constitution. Such a move, he said, "would insert the U.S. Supreme Court into every election law dispute."
"Before, state supreme courts could still be more expansive to the right to vote because the state constitutions go further," Douglas, who researches election law, told CBS News. "But if the U.S. Supreme Court started taking the cases from the state supreme court, it can cut off that avenue."
Pennsylvania Republicans then asked the high court to rule on the merits of the case and fast-track its review of the state supreme court decision. The Supreme Court rejected their request on Wednesday.
But Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, suggested the Supreme Court could resolve the matter after Election Day.
"It would be highly desirable to issue a ruling on the constitutionality of the State Supreme Court's decision before the election. That question has national importance, and there is a strong likelihood that the State Supreme Court decision violates the Federal Constitution," Alito wrote. "The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election."
Barrett did not take part in consideration of the matter "because of the need for a prompt resolution of it and because she has not had time to fully review the parties' filings," the Supreme Court said.
North Carolina
In another dispute involving an extension of the deadline for mail-in ballots, the Supreme Court voted 5-3 to allow absentee ballots in the Tar Heel State to be received and accepted up to November 12. Roberts and Kavanaugh joined the three liberal justices, while Barrett again did not participate in consideration of the case.
Republicans had asked the high court to block a decision by the state Board of Elections as part of a legal settlement that lengthened the mail-in ballot deadline from three to nine days after Election Day.
Alabama
Last week, the Supreme Court allowed Alabama to reinstate a ban on curbside voting with a 5-3 vote along ideological lines. With their order, the conservative justices granted a request from Alabama Secretary of State John Merrill to block a lower court order allowing counties to adopt the practice because of the pandemic.
In her dissent, Sotomayor said the Supreme Court "should not substitute the district court's reasonable, record-based findings of fact with our own intuitions about the risks of traditional in-person voting during this pandemic or the ability of willing local officials to implement adequate curbside voting procedures."
In July, the justices blocked a different lower court ruling that allowed counties to offer curbside voting in the state's runoff election and eased absentee ballot requirements in three counties.
South Carolina
Earlier this month, the Supreme Court sided with South Carolina Republicans and restored the state's requirement that absentee ballots are signed by a witness. Ballots already mailed back without a witness, however, could still be accepted, the court said.
Democrats in the Palmetto State sought to have the requirement of a witness signature suspended, but Republicans countered that it helped protect against voter fraud. A lower court lifted the 1953 requirement because of the coronavirus pandemic.
Rhode Island
Unlike its action in the South Carolina case, the high court declined to block a lower court ruling suspending Rhode Island's requirement that voters fill out absentee ballots before witnesses or a notary.
Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented and would have left the witness requirement in effect, as Republicans requested.
The Supreme Court stated in its order that the Rhode Island case differed from others where state election officials opposed changes required by federal judges because "here the state election officials support the challenged decree, and no state official has expressed opposition."
Texas
In June, the Supreme Court turned away a request by the Texas Democratic Party and voters in the state to reinstate a lower court's order requiring the state to allow any eligible voters to apply for, receive and cast an absentee ballot during the coronavirus pandemic.
Sotomayor, who respected the Supreme Court's denial, said the case "raises weighty but seemingly novel questions regarding the 26th Amendment." While she agreed with the decision, Sotomayor said "I hope that the Court of Appeals will consider the merits of the legal issues in this case well in advance of the November election."
Idaho and Oregon
In June, the Supreme Court blocked an order from a lower court judge in Idaho that eased rules for signature collections on ballot initiatives.
The court took similar action in August in a dispute involving Oregon's election practices, declining to loosen the state's requirements for landing a partisan gerrymandering referendum on the ballot. A federal district judge lowered the number of signatures required and allowed more time to collect them.
Florida
While most of the Supreme Court's actions on voting have stemmed from an easing of election procedures because of the coronavirus, the high court in July weighed in on a dispute involving a constitutional amendment approved by Florida voters in 2018 that extended voting rights to certain non-violent felons.
But Governor Ron DeSantis, a Republican, required felons to pay all court fines, fees and restitution first before their sentences are considered complete and they are eligible to vote again.
The Supreme Court this summer let stand a decision by the 11th U.S. Circuit Court of Appeals that blocked more than a million convicted felons from voting because of the restrictions.