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The Courts May Step In, Then Step Back

There is a decent chance we will know the major results of today’s balloting by this time tomorrow, but probably a better chance that we won’t. One thing is nearly certain: The courts will play a lesser role in the elections of 2022 and 2024 than they will play this year.

Maybe you see this as no big deal. After all, the Supreme Court essentially decided the presidential election of 2000 when it halted Florida’s recount (although it likely did not affect the outcome; later analysis showed George W. Bush likely would have prevailed even if the recount had continued). The courts then played no major role in deciding the next four presidential contests.

But with control of the White House and the Senate – and thus, the power to make lifetime federal judicial appointments – seemingly stranded on a high wire stretched across the heartland from two liberal coastal poles, every close federal election nowadays is fought as hard in the courts as in the campaigns. Soon we will have controversies over redistricting following the tabulation of the 2020 census, the results of which are themselves are likely to face challenges. The precedents laid down in the weeks just ahead may be among the most important consequences of the unusual circumstances surrounding this year’s election.

It is high time. The Supreme Court’s 5-4 ruling in Bush v. Gore settled nothing about the role of either the federal or state courts. The majority decision declared that it was “limited to the present circumstances.” This has left judges across the country free to rewrite election rules more or less as they see fit, to enforce broad constitutional principles of fair and equal access to the ballot.

That is what led to the Pennsylvania Supreme Court redrawing congressional district boundaries two years ago, even as the justices in Washington were considering what constitutional limits should apply to political gerrymandering that is not explicitly race-based. And this is what led to federal and state courts issuing a hodgepodge of pandemic-inspired decisions across the country that either upheld or erased statutory deadlines for mailing, receiving and counting ballots this week.

What makes an election fair? I offer this proposition: An election is fair when it is conducted without bias, according to rules determined well in advance and applied to everyone in equal measure. These principles are considerably more important than the rules themselves. Must a ballot be received by Election Day, or merely postmarked by that date and received by some later deadline? Should ballots received by the deadline count if they don't have a legible postmark? Should ballots count if they are returned without an inner privacy sleeve, which some jurisdictions require, or if a voter signature does not appear to match one on file? How much time should voters get to “cure” such questionable ballots? Can that time extend past Election Day? Exactly where, how and by whom should such “cures” be executed?

I don’t think the specifics of these rules really matter, in general. They can matter a lot in specific circumstances, though. This is why the rules should be set out in advance, not made in an ad hoc fashion in response to “present circumstances,” as the high court did in 2000. That sort of behavior compromises the integrity of elections, and of the courts, too.

So I welcome the judicial clarity that this year’s election may bring. It is unfortunate that such clarity did not arrive before the vote tallies start to be returned tonight.

In Florida and Michigan – the two battleground states with the largest and third-largest shares of electoral votes up for grabs – absentee ballots must be received no later than today to be counted. Barring recounts if the results are very close, we should know tomorrow how things turned out in both states. This could be critical in the presidential race. It might also be very important for Senate control, as GOP candidate John James seemed in striking distance of unseating a Democrat, Gary Peters, in Michigan.

But in Pennsylvania, the second-largest swing state, election officials will count mail ballots if they are received by Friday, as long as they are postmarked by today – or not postmarked at all. This is by order, once again, of the state Supreme Court, whose members are elected on party tickets, currently with a Democrat majority.

Wisconsin, another battleground state that Donald Trump won by a whisker in 2016, will require mail ballots to be received today, thanks to a federal appeals court that overturned a state judge’s ruling. But North Carolina will count ballots received as late as Nov. 12, nine days after Election Day. The Legislature had granted an extra three days, which the state Board of Elections lengthened to nine. The courts declined to block the change. This, too, could have critical ramifications for Senate control, if Democrats dominate mail-in voting this year. Reversing the Michigan situation, incumbent Republican Thom Tillis was fighting to keep his seat against a strong challenge from Democrat Cal Cunningham.

How much latitude should courts assert to adjust election procedures, and how close to the election should they be able to exercise such discretion? There are opposing philosophies. The Supreme Court’s liberal minority seems to have adopted the view that courts should have as much latitude as it takes. Conservative Justice Brett Kavanaugh opposed this view in a footnote to a recent statement addressing Wisconsin’s situation. (It isn’t an opinion, since the Supreme Court did not actually hear the case.) Kavanaugh essentially argued that the courts should have only as much latitude as the Legislature gives them, presumably barring constitutional infringement.

“The text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws,” Kavanaugh observed, alluding to the Bush v. Gore decision even though it is not considered precedent.

Chief Justice John Roberts has essentially staked out a middle ground, giving state courts more latitude to interpret and apply state election laws than he would give federal courts. And newly elevated Justice Amy Coney Barrett has not weighed in on any of these matters, although her originalist philosophy hints that she may be closer to Kavanaugh’s view than the others. We are apt to find out soon.

How much will it matter? We could have a pretty good idea by tomorrow. If Joe Biden seems poised to carry critical Trump states like Florida (29 electoral votes), North Carolina (15) and Arizona (11), it probably won’t make a difference. In fact, a Biden victory in Florida would basically be game over for Trump. I don’t think my home state will break that way, given our recent voting history, but what I think is irrelevant. Florida elections are full of surprises.

Assuming the president carries the aforementioned states, even if Biden picks up isolated electoral votes in Maine and Nebraska that are up for grabs, winning either Pennsylvania or Michigan – or winning Wisconsin plus Minnesota – likely gives Trump a new four-year lease on the White House. Minnesota, like Wisconsin and Michigan, will require its mailed ballots to be received by tonight.

In the Senate, Democrats need to net three seats if Biden wins the White House, or four seats in the event of a Trump victory, to gain control. Democrat Doug Jones of Alabama is sure to lose his seat tonight. Otherwise, only Peters in Michigan is in jeopardy for the Democrats. So Democrats need to capture at least four other seats from Republicans, and maybe as many as six, to strip Republicans of Senate control.

Three GOP senators – Martha McSally in Arizona, Cory Gardner of Colorado and Maine’s Susan Collins – are in serious trouble; they could all easily lose. Maine has a ranked-choice voting system that could further undermine Collins’ chances. Tillis has been polling behind Cunningham in North Carolina, although a strong Trump showing there might rescue him. Two other hoped-for Democrat pickups, Republicans Joni Ernst in Iowa and Steve Daines in Montana, seem like more of a reach. They may be out of play already, despite some close polling.

This would leave Senate control down to three Deep South races that would never have been in doubt in other recent times. South Carolina’s Lindsay Graham and Georgia’s David Perdue are in dogfights to keep their seats. I have trouble seeing how Graham, a veteran who just shepherded Barrett’s nomination through his Judiciary Committee, could actually lose his seat while sharing a ballot with Trump in South Carolina. But Graham has clearly been nervous in the face of a Democratic advertising onslaught. Perdue is more vulnerable in a demographically changing state increasingly weighted toward metropolitan Atlanta. Even if he wins, the vote is apt to be close.

And the third crucial Southern race? Well, it’s 2020, so of course it is its own special flavor of peculiar.

The resignation for health reasons of Sen. Johnny Isakson last year created a vacancy in Georgia. Republican Kelly Loeffler has filled it up until now. But there are two leading Republican candidates on today’s ballot – Loeffler and Doug Collins. (There are five Republicans altogether out of 20 total candidates.) Loeffler and Collins will likely split the GOP vote, making Democrat Raphael Warnock the “winner” tonight. However, if Warnock fails to reach 50% of the total vote, the Senate seat will be decided in a runoff election on Jan. 5. At least this puts it safely out of 2020’s reach.

So when the dust settles on today’s voting, we may or may not know who will control the White House and the Senate next year. We may not know for days, or weeks – or, in the Senate’s case, even a couple of months to come. The final decisions may very well be settled in the courts, and the role of the courts in future elections will probably be settled in the bargain.

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