Citizen Cartwright

Understanding recent Supreme Court rulings in election cases

In a little over a week, the Supreme Court issued five sets of orders in election cases, and Democrats prevailed in three of them.

Chief Justice John Roberts wrote an opinion in just one of the cases, and it was only a paragraph long. And it made a distinction no other justice endorsed. 

 

"But that distinction can explain every one of the court’s orders,” says New York Times legal reporter Adam Liptak.

 

The distinction is that federal courts shouldn't change voting procedures enacted by state legislatures, and they shouldn't step in when state courts or agencies change those procedures, Liptak says.

 

"The something-for-both-sides approach is broadly similar to Chief Justice Roberts’ recent record, in which he voted with the court’s liberals in cases on gay rights, immigration and abortion; joined the court’s conservatives in major cases on religion; and wrote the majority opinions in cases on subpoenas seeking President Trump’s financial records that rejected his broadest claims but did not require immediate disclosures,” Liptak says.

 

Roberts’ work last term meant he was in the majority in divided decisions at a higher rate than any chief justice since at least 1953, Liptak says. Scholars debated whether that was evidence of principle or pragmatism, noting that Roberts has tried hard to shield the court from charges that it's a political body.

 

In the election cases, too, Roberts' rationale staked out a middle ground, consistent with conservative ideas about federalism even as the court’s other members seemed to take all-or-nothing approaches, says Liptak. The court’s more liberal members said the right to vote was important enough to justify letting federal judges change state election rules. And its more conservative members said the Constitution prohibits all changes to voting rules enacted by state legislatures, even those supported by state courts or state officials.

 

“Roberts is desperately trying to preserve the court as above the fray by staying out of the fray — and when I say the court, I mean the federal courts generally,” says Michael Dorf, a law professor at Cornell.

 

Among the messages Roberts’ positions has sent is nonpartisanship and not endorsing President Trump’s attacks on voting by mail, Liptak says.

 

The voting orders may be Roberts’ last hurrah, Liptak says. Once Justice Amy Coney Barrett starts voting, she's expected to join the court’s more conservative members, pushing Roberts out of his spot at the court’s ideological center. 

 

And that could make Justice Brett Kavanaugh the median justice, says Liptak.

 

Two blocs of justices seem solidly committed to their views, Liptak says. The three Democratic appointees — Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan — have backed efforts to make it easier to vote during a pandemic, whether called for by federal judges, state judges or state officials.

And the three most conservative members of the court — Justices Clarence Thomas, Samuel Alito and Neil Gorsuch — take the opposite view.

 

Kavanaugh is "an intriguing work in progress whose votes in the recent election cases are hard to reconcile,” says Liptak.

 

Maybe in his opinion in a Wisconsin case, Kavanaugh was declining to change the status quo just days before Election Day but was laying down “a marker concerning his views of the court’s power to step in and decide state-law questions in elections cases,” says Daniel Epps, a law professor at Washington University in St. Louis.

“He wanted to do that now, because of the possibility that such an issue might arise and prove critical to the election if, say, everything hinges on Pennsylvania,” Epps says. “By stating his views now, he’s avoiding the possibility that people will say that he just agreed with that position later on after it turned out to be critical to Trump’s reelection.”

 

There might be a practical explanation for the court’s most recent actions, according to Rebecca Green, a law professor at William & Mary.

“Members of the court are clearly skeptical of federal and state court attempts to futz with state legislative design for how elections should be run,” she says. “But we are voting in a pandemic and November 3 is nigh. The court is highly conscious of not upsetting the process at this very late date. Once we are past Election Day, the court seems poised to defend the role of state legislatures if it comes to that.”

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Note to email subscribers

As you know, this blog is set up to be sent to you automatically at 7 a.m. Monday through Friday by Mailchimp. That means I need to press “publish" for the top item by 6:59 a.m. Many days, it is in fact at that very last minute that I’m pressing the button. Yesterday, when I looked to see how much time I had left, my laptop clock said 7:00 a.m. And so, to my expletive-accompanied dismay, the top item didn’t appear in your email. It’s below. My apologies!

'The most important election in history'

Let’s take a brief look at the long cover story in the fall issue of Foreign Policy Magazine titled “The most important election in history: Why the fate of the American Republic — and the world — could depend on what happens on Nov. 3,”  by longtime journalist Michael Hirsh.
 
"Some suggest that Trump and the malign forces he has summoned up have already done so much damage to the institutions of U.S. democracy — especially in his failure to contain the COVID-19 pandemic and his open encouragement of racial violence and national division — that his reelection in November could damage forever the 244-year-old American experiment of a republic of laws,” Hirsh says.
 
"After a first term in which Trump has openly defied Congress and the courts, twisted foreign policy to serve his personal political interests, and turned a terrified Republican Party into his plaything, his return to power would, in effect, legitimize the gutting of the institutions of law and what remains of the founders’ checks and balances. Reelection would vindicate his view that as president he can, as Trump said, 'do whatever I want.' It would all but destroy, in other words, the American conceit that the United States is a different kind of democracy than has existed in the past, leaving the country as just another abject discard on the ash heap of failed republics going back to ancient Rome and Greece.’”
 
Hirsh says the concern is shared by many former senior officials in previous Republican administrations stretching back to Ronald Reagan. 
 
“This is a kind of fulcrum moment,” says Edward Watts, a University of California, San Diego, historian and the author of "Mortal Republic: How Rome Fell Into Tyranny."
 
“If Trump is reelected, then I think the norms and restraints of American democracy disappear completely,” Watts says.

“There’s no question in my mind that it’s the most important election in American history. The stakes are just enormous,” says Charles Kupchan, a Georgetown University political scientist, former diplomat, and the author of "Isolationism: A History of America’s Efforts to Shield Itself From the World.”
 
“One term is bad enough, but if Trump is reelected, Americans and people around the world would no longer be able to say the American electorate made a mistake. Instead it would be an affirmation this is the direction Americans want to go,” says Kupchan.
 
“Internationally, it is a world-historical moment — America’s role in the world, and the organization of the global system, is also on the ballot,” says John Ikenberry of Princeton University, author of "A World Safe for Democracy," chronicling two centuries of liberal internationalism. 
 
“If Trump wins, the whole postwar liberal order continues to unravel, and democratic and other allies of the U.S., who are hedging and hoping that the U.S. will return to playing a ‘system role,’ will start making other plans,” says Harvard University’s Joseph Nye. He says a leading diplomat from an allied European nation told him recently: “We can hold our breath for four years. Eight years is too much.”
 
The United States wouldn't be the first major power to see itself as an exception in the history of nations "and to overextend and exhaust itself in the end because of the hubris that accompanies such delusions," says Hirsh.
 
He quotes Lord Byron: “’Tis but the same rehearsal of the past / First Freedom, and then Glory — when that fails / Wealth, vice, corruption  — barbarism at last.”
 
When I came to Washington long ago to work for a congressman, it quickly became clear to me how important it is for every citizen to pay attention to what’s going on. Policymakers do what we, the people, pressure them to do. 
 
I agree with “prophet of the information age” Marshall McLuhan, who said, "There is absolutely no inevitability as long as there is a willingness to contemplate what is happening."
 
And to follow up by doing what each of us can to keep this American democratic experiment going.

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Barrett confirmed for Supreme Court, to start work Tuesday

The Senate’s 52-48 confirmation vote late Monday was the closest high court confirmation to a presidential election in history and the first in 150 years with no support from the minority party.

 

At a swearing-in ceremony on the White House lawn shortly after the vote, Barrett said: “It is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give in to them. A judge declares independence not only from Congress and the president but also from the private beliefs that might otherwise move her.”

 

Barrett is expected to begin work as a justice on Tuesday after taking the second of two oaths required of judges by federal law, says The Associated Press.

 

Barrett could be a decisive vote in Republican appeals of orders extending deadlines for absentee ballots in North Carolina and in Pennsylvania.

 

On Friday, Barrett, the most open opponent of abortion rights to join the court in decades, could be called upon to weigh in on Mississippi’s appeal of lower court rulings invalidating its 15-week abortion ban, says AP. And abortion opponents in Pittsburgh are challenging a so-called bubble zone preventing protesters from getting too close to abortion clinics.

The Supreme Court also is considering President Trump’s emergency plea to prevent the Manhattan District Attorney from acquiring his tax returns. And on Nov. 10, the court is expected to hear the Trump-backed challenge to the Obama-era Affordable Care Act.

 

At the start of Trump’s presidency, Senate Majority Leader Mitch McConnell, R-Ky., engineered a Senate rules change to allow confirmation by a majority of the 100 senators, rather than the 60-vote threshold traditionally needed to advance high court nominees over objections. That was an escalation of a rules change Democrats put in place to advance other court and administrative nominees under President Obama.

 

Just two years ago, Barrett was seen as possibly too conservative to be confirmed by a narrow GOP Senate majority, and too hostile to the Roe v. Wade case establishing a right to an abortion, says Politico. This time around, McConnell argued to the White House not to meet with anyone other than Barrett, according to aides.

The shift came after Republicans picked up two seats in the 2018 midterms along with a harder-right turn in the conference's center of gravity, Politico says.

 

In the end, even Sen. Lisa Murkowski, R-Alaska, was swayed, "perhaps the most shocking event during the entire confirmation process,” according to Politico. She'd opposed confirming a Supreme Court justice so close to the presidential election but said on Saturday that she didn’t hold it against Barrett, who she said had “navigated the gauntlet with grace, skill and humility.”

 

Just before the Senate voted to confirm Barrett, Murkowski said, "I believe she won’t vote to overturn Roe v. Wade,” reports The Hill.

 

Only one Republican — Sen. Susan Collins, who's in a tight reelection fight in Maine — voted against the nominee, but not over any direct assessment of Barrett. Collins said, “I do not think it is fair nor consistent to have a Senate confirmation vote prior to the election.”

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Longtime election observer says U.S. resembles Bangladesh, Egypt, Afghanistan

With an incumbent president attacking the electoral process as rigged and refusing to commit to accepting the results, the U.S. elections increasingly resemble those in struggling democracies and autocratic countries, writes Eric Bjornlund, president of Democracy International, in Foreign Policy.

 

"I speak from experience, having led or managed some 40 election observation efforts in 22 countries over more than 30 years,” he says.

 

He says the United States can now be compared with:

 

— Bangladesh, which has many of the hallmarks of a democracy, such as multiparty elections and a functioning parliament, but in each of the six national elections since the country’s transition away from authoritarianism in 1991, the losing party has accused the winning party of rigging the vote. 

 

— Egypt, which has missed the opportunity to move toward genuine democracy since its revolution in 2011, as the integrity of a series of elections has been challenged.

 

— Afghanistan, where in both 2014 and 2019, candidate Abdullah Abdullah refused to concede to the declared winner, Ashraf Ghani, plunging the country into political crisis. 

 

Other problems common to controversial elections in developing countries also now are prevalent in the United States, Bjornlund says. International observers, for example, have criticized authorities in many nations for obstacles to voter registration and balloting, which may lead to the suppression of specific voter groups.

 

In Myanmar, members of the Rohingya minority generally aren't allowed to vote. And in Afghanistan, participating in elections has been especially difficult for women.

 

Bjornlund cites Florida, where the Republican establishment has fought to undermine a state constitutional amendment requiring the restoration of voting rights to citizens with previous felony convictions by passing legislation and using the courts to limit those rights. 

 

And Texas, where state authorities have declined to expand the use of absentee balloting despite the ongoing pandemic and Republican Gov. Greg Abbott has decreed that each county can have only one drop box for early ballots, thereby making voting less accessible and disproportionately affecting urban areas more likely to vote Democratic. 

 

And many critics say recent service cuts by the U.S. Postal Service at the behest of new Postmaster General — and Trump donor — Louis DeJoy seem calculated to slow delivery of mail-in ballots, Bjornlund notes.

 

"From experience monitoring elections around the world, we know that what distinguishes a genuine democracy from a troubled or fake one is that all major candidates and parties accept the rules and those that lose accept and respect the results,” Bjornlund says. "Legitimacy derives not only from the laws and rules that govern the system but also from broad acceptance of the rules of the game and the legitimacy of the process.

 

"In large part because of Trump’s attacks on the process, elections in the United States look more and more like those we have observed in less-than-democratic countries. These are the kinds of problems that trigger substantial international concern. They hurt public confidence in the U.S. election process and threaten to undermine the very legitimacy of the United States’ democracy."

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