The Independent View: Why Supreme Court Handles State's Mail-in-Ballot Cases Differently

In the Final Days before the Presidential Election, the Supreme Court has been pelted with Requests from Parties in Battleground States seeking last minute Approval to Change Election Rules, especially regarding whether Mail-in-Balots can Arrive after Election Day and still be Counted.

The Court, issuing some of the Orders after hours, has Navigated a Minefield with Justices seeking Consensus and Coherence where Possible, hindered without the Benefit of a Full Briefing Schedule.

Then the Situation was Complicated by the fact that Emergency Requests came in Before and just After Justice Amy Coney Barrett took the Bench, and has stayed Out of the Political Fray for the Moment.

On the face of it sometimes the Orders seemed Contradictory. In North Carolina, Ballots can Arrive up to Nine Days after Election Day; in Pennsylvania, Ballots can Arrive up to Three Days Late, for now; and in Wisconsin, the Court said Ballots Must be in by Election Night.

Some Themes have emerged. It is now Clear that Four Conservative Justices are ready to take a Sharp Right Turn when it comes to the Power of State Legislatures to Set the Rules for Elections. In addition, Chief Justice John Roberts serves as the Swing Vote at times, but still worked to Preserve the Court's Institutional Legitimacy, and the Liberals on the Bench again Expressed their Fear that the Pandemic could Disenfranchise Voters in some States, and except State Court Rulings.

A Federal District Court in Wisconsin had Allowed Ballots to be Received up to Six Days after the Election, but a Federal Appeals Court had Blocked the Order. The High Court Upheld that Block in a 5-3 Ruling. Here, Roberts' Role was Critical, and he sided with the other Four Conservatives, the Ruling came down before Barrett joined the Bench. He explained that the Federal District Court had "intervened in the thick of election season" and Intruded on the State Lawmaking Processes, which didn't Allow for Extending the Mail-in-Deadline. The Court made clear that Federal Courts shouldn't Interfere to Change State Election Rules so Close to the Election.

"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," Gorsuch wrote. That would make a Big Difference in Post-Election Challenges particularly if the Legislature and Governor are from Different Parties.

Kavanaugh went farther. Echoing Trump, he said States are within their Rights to Set Election Day Deadlines "to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election."

I disagree with Kavanaugh. Our modern day Election System has always built-in, the Arrival of Ballots from Military and Overseas Voters after an Election; Provisional Ballots counted after the Election; and Court Desions, to determine a Race Winner and finally Certify an Election, after Election Day.

In Pennsylvania, the Circumstances were Different, and the Case came up to the Court Twice. Unlike Wisconsin, where the Lower Court Challenges played out in a Federal Court, here a Pennsylvania State Supreme Court Decision was Central to the Challenge. That State Court had Allowed Mail-in-Ballots to Count if they are Received within Three Days after the Election, even Without a Legible November 3rd Postmark.

Republicans asked the Court to Step-In to Reinstate an Election Day Deadline, but on October 19th, the Court announced it was Deadlocked 4-4, meaning the Three-Day Extension could Stand.

Here Roberts was the Swing Vote, this time siding with Liberals. Roberts sees a Difference in how State and Federal Courts should look at an Issue. As he said in the Wisconsin Case: State Courts may have Authority to Apply their Own Constitutions, but Federal Courts shouldn't Intrude too Close to an Election.

The Court Rejected Two exceedingly Complicated Challenges brought by the Trump Administration, Republicans, and State Legislators, letting stand an Accommodation allowing Ballots to Arrive up to Nine days after Election Day, so long as it's Postmarked by November 3rd. Barrett did Not participate, and Thomas, Alito, and Gorsuch, Registered their Dissents.

The State Llegislature had established a Three-Day Extension for Mail-in-Ballots in June, but later a Federal Appeals Court had Allowed the Nine-Day Extension that was set by the State Board of Elections amidst the Pandemic, as Part of a Legal Settlement.