In terms of it, commands seem contradictory at times. In North Carolina, ballots can come nine days after Election Day; in Pennsylvania, ballots can be up to three days late – for now; and in Wisconsin, the court states that the ballot paper is required on election night.
Several topics have appeared. It is now clear that the four conservative judges are ready to turn right when they receive the power of the state legislatures to set rules for elections. In addition, Chief Justice John Roberts is also a random voter, but is still working to defend the legitimacy of the judiciary, and libertarians on the bench are once again on display. expressed fear that a pandemic could deprive voters of some states away.
Meanwhile, Barrett, Trump̵7;s newest justice, has stood out of the political conflict at the moment.
Wisconsin: Mail ballots must be received by Election Day
Here, Roberts’ role is crucial, and he sided with four other conservatives (the verdict was made before Barrett joined the bench). He explained that federal district courts had “interfered in the heavy election season” and violated the state law-making process – which did not allow for an extension of the mailing deadline. The court has made it clear that federal courts should not intervene to change state election rules near election day.
“The constitution states that state legislatures – not federal judges, not state judges, not state governors, not other state officials – have primary responsibility for establishing Election rules, ”wrote Gorsuch. That will make a big difference in post-election challenges, especially if the legislature and governor are from different parties. It forms a stronger role for the Supreme Court when it considers lower courts.
Kavanaugh went further. Referring to Trump, he said states had the right to set a deadline for Election Day “to avoid the chaos and suspicions of possible mismatch if thousands of absentee ballots poured in after election day. and potentially overturning the outcome of an election. ”
The remaining three liberals emphasized that the courts had intervened because of the pandemic and they feared that voters would be disqualified during the pandemic.
Pennsylvania: Mail ballots can arrive three days after Election Day – for now
In Pennsylvania, the situation was different, and the case was brought to court twice. Unlike Wisconsin, where subordinate court challenges take place in federal court, a Pennsylvania Supreme Court decision is the focus of the challenge. That state court has allowed the count of letters on ballots if they are received within three days of the election – even without a clear November 3 postmark.
Republicans asked the court to postpone the deadline for Election Day, but on October 19, the court announced it was deadlocked for 4-4, meaning a three-day deadline could exist.
Barrett has yet to be on the bench and Roberts is the decider, this time on the side of the liberals. Roberts noticed a difference in how state and federal courts should consider an issue. As he said in the case of Wisconsin: state courts may have authority to apply their own Constitution, but federal courts should not violate too close to an election.
But Alito notes that Pennsylvania has agreed to separate the votes that could be used for the election – those that come after Election Day until three days later – and not to pre-set a post-election challenge but rather can only happen in the rarest of circumstances.
“There is a high possibility that the State Supreme Court’s decision violates the Federal Constitution,” Alito said.
If that line of argument prevails – that state courts are usurping state legislatures’ right to make rules – it could have huge post-election consequences when it comes to censorship. votes and other disputes.
North Carolina: Mail ballots can be received up to nine days after Election Day
The state legislature set up a three-day extension for mail ballots in June, but a federal appellate court later allowed an additional nine-day extension by the State Election Commission. a pandemic, as part of a legal agreement.
What is unknown is the vote of Roberts and Kavanaugh. It is possible that the vote is divided into 4-4, and Kavanaugh agrees not to record his ballot to highlight the deadlock, but when the court issues orders like this one, only judges want to go public. their dissidents were named.
Gorsuch, with Alito’s participation, echoed what he said in the case of Wisconsin: the power of the state legislature to establish election rules.
What remains unclear in the future is the Barrett factor.
By saying she hadn’t been read enough to vote on cases, Barrett defended himself from criticism that her first votes on the bench went into focus. treatment, especially given her controversial nomination process and showed up on the bench just before the election.
It is a move that can be confirmed by the judge, who is deeply concerned with defending the institutional concerns of the court.