Eyes on Barrett as SCOTUS looks at North Carolina voting appeal

A new petition filed with the Supreme Court late Tuesday highlights the impact that Justice Amy Coney Barrett could play, not only as her vote applies to current voting disputes but any post-election challenges over procedures like ballot counting.

At issue is a state court’s authority to rule on its own state laws when it comes to election procedures. While several justices on the high court have made their inclinations public, the full court has yet to weigh in. It could be of critical importance in the rare case that, like in 2000, the Supreme Court is left to decide the election and candidates challenge election results.

Going in, President Donald Trump’s three nominees to the bench could be crucial and it could play out in North Carolina, a key battleground state with a Republican-led legislature and a Democratic governor.

Tuesday, lawyers for the GOP legislators asked the Supreme Court to step in and block a nine-day ballot extension deadline while appeals play out. They are targeting a state court decision that adopted a consent decree agreed to by the state board of elections as a part of a legal settlement. Already, the legislators had asked the Supreme Court to block a federal court opinion upholding the same decree. That petition is pending.

In both cases, the Republicans want the Supreme Court to reinstate a deadline passed by the state legislature that allowed ballots to be received three days after the election if they are postmarked by election day.

The North Carolina disputes will require the justices to consider the authority of both federal and state courts when it comes to altering a state’s election rules. They also will have to consider the impact of changing the rules too close to the election.

Chief Justice John Roberts, who often seeks to keep the court out of the political fray, might seek a more modest, less decisive move that could narrow the accommodation as a way of reaching consensus. But the GOP lawyers are asking for a broad ruling rooted in the Constitution. They argue that the consent decree adopted by the state court “effectively nullifies statutes enacted by the North Carolina General Assembly while depriving the State of its ability to enforce its duly enacted laws.” They point to provisions of the US Constitution “that protect North Carolina’s elections and the right to vote.”

At her confirmation hearings this month, Barrett declined to discuss the election-related lawsuits or if she would or would not recuse herself from such cases.

Conservative justices like Neil Gorsuch, Brett Kavanaugh and Clarence Thomas have made their views clear. Just this week, Gorsuch emphasized the importance of a state legislature to craft the appropriate rules.

“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 in an opinion concerning Wisconsin that was joined by Kavanaugh.

Kavanaugh, who also penned his own concurrence in that case, went further. “State courts do not have a blank check to rewrite state election laws for federal elections,” he said relying upon the reasoning of a concurring opinion in Bush v. Gore that was signed by Thomas.

Kavanaugh, echoing Trump, also repeatedly emphasized that states have good reasons for their deadlines including a goal to “avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day.”

Roberts has been a swing vote.

He voted with liberals to allow an accommodation upheld by the Pennsylvania Supreme Court but he sided with conservatives to block a similar accommodation allowed by a federal district court in Wisconsin.

He explained the difference by noting that a state court had greater leeway to step in when ruling on its own state rules but that federal courts didn’t have the same authority. He called the Wisconsin federal court decision to allow an accommodation an “intrusion on state lawmaking processes.”

Roberts could be able to distinguish the state court actions in North Carolina from Pennsylvania, but with Barrett on the bench, the conservatives may not need his vote.

Pennsylvania Republicans have sent a new petition to the court that has yet to be acted upon.

As for the liberals, they have pushed back on the notion that state legislatures should always have the final word. “If there is one area where deference to legislators should not shade into acquiescence, it is election law,” Justice Elena Kagan wrote in dissent in the Wisconsin case. “For in that field politicians incentives often conflict with voters’ interests -that is, where suppressing votes benefits the lawmakers who make the rules.”

Kagan also emphasized that court’s decisions allowing accommodations have been made so that voters won’t be disenfranchise “in the midst of hazardous pandemic conditions.”

Gorsuch and Kavanaugh have acknowledged the pandemic but said courts should not intervene.

“The judge in this case,” Gorsuch wrote in the Wisconsin, dispute “tacked 6 days onto the State’s election deadline, but what about 3 or 7 or 10, and what’s to stop different judges choosing different jurisdictions?” he asked. “A widely shared state policy seeking to make election day real would give way to a Babel of decrees.”

Now Barrett, in her first week on the bench, could be pulled in.