Today, Explained - The Supreme Court may disenfranchise you now

Episode Date: October 27, 2020

Pandemic or not, the highest court in the land won’t extend Wisconsin’s deadline for mailed ballots. Good thing it’s not a swing state. Oh, wait ... Transcript at vox.com/todayexplained. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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Visit connectsontario.ca. It's Today Explained. I'm Sean Ramos from and we are just one week away from Election day in the United States at long last. Of course, there's a pandemic. People are already voting. The U.S. Postal Service actually recommends people send in their ballots by today in order to make sure their votes get counted. And that's because about 30 states require that ballots be received by election day. And just last night, the Supreme Court ruled that one of them, a swing state no less, didn't have to extend that deadline, which almost guarantees at least some ballots in that state won't get counted. Ian Millhiser, you covered the Supreme Court for Vox. What is up with the Supreme Court voting in Wisconsin? Okay. So the broader problem that

a lot of states are dealing with is just that election offices are overwhelmed. You know, more people are voting by mail than ever before because they don't want to go out during a pandemic. Sending out absentee ballots and collecting them takes time. You have some areas where the post office isn't operating as fast as it should be. And so there's a delay in the mail going out. And so there's a very real danger that voters are going to be disenfranchised through no fault of their own. You know, a voter might mail their ballot in a week in advance. And because of a post office delay, the ballot doesn't arrive by Election Day and the vote is not counted.

Right. So how does this how does this apply to Wisconsin? What's going on there specifically? So in Wisconsin, a lower federal court said that some of these late arriving ballots should be counted. You know, if a ballot is mailed before Election Day and it arrives, I believe, within six days of Election Day, it will be counted because we don't want an arbitrary situation where there's two voters. Both of them mail it before Election Day. But because of some snafu in the post office, one of them gets to vote and the other one doesn't. That's what the lower court was trying to avoid. Okay. The Supreme Court basically looked at this whole problem, where voters might be disenfranchised through no fault of their own, and said, this is the deadline. Lower federal courts aren't allowed to step in and fix the problem. Tough. Right. And

the deadline is election day instead of what was previously looking like what. So long as your ballot was postmarked by election day, they'd'd counted up to six days after. And this was a he said, if a state Supreme Court wants to accommodate the pandemic and make sure that voters have their ballots cast, that's fine. But federal courts can't do this. Then there were two other concurring opinions from Gorsuch and Kavanaugh that laid out a bunch of different reasons. Gorsuch's opinion was very rigid. It said the state legislature gets to decide what the rules are. State governors can't decide it. Other state officials can't decide it. Federal judges can't decide it. State judges can't decide it. The primary responsibility is with the state legislature. Kavanaugh gave a bunch of reasons.

He gave a somewhat milder version of Gorsuch's only the state legislature approach. And then he also pointed to a few other factors. He believes that cases that come up to the Supreme Court close it seems, wants these decisions to be made by state legislatures and not by courts. And in many cases, you are dealing with states that have gerrymandered legislatures where the legislature is controlled by the Republican Party. Hmm. What did the three dissenting justices say? So the three dissenting justices basically said that, look, the right to vote is more important than this. You know, and beyond that, you know, Justice Kagan wrote the dissent. She pointed to the fact that the pandemic is making things really hard. You know, that state election offices are overwhelmed, that voters might be disenfranchised through no fault of their own, that they might not be able to get their ballot soon enough. And all of these are reasons why she agreed with the lower court that voters shouldn't be disenfranchised for arbitrary reasons, such as a slowdown in the mail or the fact that their ballot doesn't arrive until too late.

Did Kavanaugh or any of the conservative justices acknowledge the pandemic? Kavanaugh at least acknowledged it. I mean, and Gorsuch at least used the word COVID in his opinion. But their position is just that there should be an extraordinary amount of deference to state officials generally and to state legislatures in particular. And in the state of Wisconsin, again, you have a gerrymandered legislature that's controlled by the Republicans. And so that means that there will be an extraordinary amount of deference to what the Republican Party wants the rules to be in the state of Wisconsin.

Can we just talk for a second here about the real world implications of this decision? I mean, how many votes did Donald Trump win Wisconsin by in 2016? So Trump won by a very narrow margin. It was about 20 or 25,000 votes. Right. Tiny margin. And to understand why that number is significant, what the Supreme Court just held, the Supreme Court held that ballots that are mailed before Election Day but that arrive during a window after Election Day that window were counted. And about 79,000 ballots arrived during that window that the Supreme Court has now cut off. So, again, Trump won by about 20,000 to 25,000 votes in 2016. We're now talking about disenfranchising, if this election plays out the same way that the April election did, about 80,000 people. So there's a very real risk, especially if the election is as close as it was in 2016, that the Supreme Court's decision will wind up changing the result of this election.

Because, of course, Wisconsin is a swing state, so huge implications. I mean, potentially. And not just because, you know, Wisconsin could be the pivotal state, but there's also similar lawsuits in North Carolina and in Pennsylvania, which are also pivotal states, dealing with whether or not ballots can be counted if they are mailed before the election but arrive in a window after the election. And so if 80,000 ballots are tossed down in Wisconsin, another 80,000 are tossed down

in Pennsylvania, another 80,000 are tossed down in North Carolina, potentially the result of the entire presidential election could be flipped this way. More with Ian after a quick break. Support for Today Explained comes from Aura. Aura believes that sharing pictures is a great way to keep up with family. and Aura says it's never been easier thanks to their digital picture frames. They were named the number one digital photo frame by Wirecutter. Aura frames make it easy to share unlimited photos and videos directly from your phone to the frame. When you give an Aura frame as a gift, you can personalize it, you can preload it with a thoughtful message, maybe your favorite photos. Our colleague Andrew tried an AuraFrame for himself. So setup was super simple. In my case, we were celebrating my grandmother's birthday.

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for Pennsylvania last week? We covered it on the show a week ago today. The Supreme Court didn't overturn a state court ruling that allowed for an extended deadline on voting. What was different here? The Pennsylvania decision involves a very similar issue to the Wisconsin case. Both of them involve whether or not ballots that arrive late will be counted. But what Roberts said, and he wrote an opinion in the Wisconsin case saying this, is he said the difference between the two cases is that we can overrule federal courts, but we can't overrule state courts on questions of state law. And so Roberts voted a different way in each case because one came from federal court,

one came from state court. Roberts' opinion, however, isn't likely to matter much longer. And the reason why is because the Pennsylvania case was four to four. This court is down a justice or was down a justice. Literally, as the Supreme Court was handing down the Wisconsin decision, the Senate confirmed Amy Coney Barrett to be the ninth justice. And, you know, Amy Coney Barrett hasn't told us how she's likely to vote in this case. But I think it's really likely that Barrett is going to vote with the conservatives in the Pennsylvania case and Roberts's views aren't going to matter very much anymore. So if there's an eventual 5-4 decision on Pennsylvania with Amy Coney Barrett on the bench, I mean, how big of a deal is that going to be? So if the court does what the most conservative

justices want to do here, it would be a huge deal. I mean, it's really hard for me to exaggerate how big of a deal it would be. I want to read a line from Gorsuch's opinion in the Wisconsin case. He said that the Constitution provides that state legislatures, not federal judges, not state judges, not state governors, and not other state officials bear primary responsibility for setting election rules. So he's suggesting that if there's a state constitutional provision protecting voting rights and the state Supreme Court strikes down a law that was passed by the state legislature because it violates the state constitution, that state Supreme Court decision might be invalid. I mean, this is such a sea change in how the law works, how lawyers think about law. It's difficult for me to predict the implications. to go racing through state election codes, looking for old laws that were vetoed by a

state governor, looking for state Supreme Court decisions they don't like, and saying that it should all be thrown out. I mean, if I were a lawyer advising a client on what's going to happen in this election under these new rules, I wouldn't even know what to begin. It's such an astounding shift in our law. And just so I'm sure I understand, the view from the more conservative justices is that the Supreme Court has authority over state courts on election law. So the Gorsuch-Kavanaugh view, as I understand it, is that if the Supreme Court of the United States feels that a state Supreme Court read an election law in a way that the Supreme Court of the United States disagrees with, then it will overrule that decision, which is not something that the Supreme Court of the United States has historically had the power to do.

How closely does this hue to Bush v. Gore in 2000, where the Supreme Court cast the deciding vote in the election. So in Bush v. Gore, there was a concurring opinion written by, joined by three justices, Chief Justice Rehnquist and Justice Thomas and Scalia, that made this argument that the state legislature has this weird primacy. And at the time when that opinion came down, I think most lawyers thought it was wacky. But one lawyer who worked on the Bush v. Gore case for Bush was Brett Kavanaugh. And Brett Kavanaugh quoted extensively from Rehnquist's Bush v. Gore opinion in his opinion in the Wisconsin case. So this view that until recently I would have considered to be off the table and until recently was considered pretty wacky by most lawyers now looks very likely to be taken seriously by the Supreme Court. So give me a scenario for this election,

let's say after election day. What could this look like if, you know, Kavanaugh's Bush v. Gore ideology sort of melds with this idea that the Supreme Court has power directly over state courts in an election year? So here's a very realistic example. I mean, this is very similar to what happened in this Wisconsin case. Let's say that the Pennsylvania election is close. There's maybe 10,000 ballots separating Biden and Trump, but Biden's up by 10,000 ballots. And so let's say that then Trump files a lawsuit saying, wait a second, we've found this pile of, say, 50,000 ballots that we want tossed out. We don't think they should be counted. They go to state court. The Pennsylvania Supreme Court says, no, we're not tossing this out. That's not what the law provides. The state legislature files a brief in that case saying, no, we think those ballots should be tossed out. Under the normal process, if there's a dispute under state law, the state Supreme Court has the final word. But Gorsuch and Kavanaugh are saying that the state legislature should enjoy

this extraordinary amount of deference. And in many of these states, you have gerrymandered legislatures where the Republican Party is basically locked into control of the legislature. And so the Republican-controlled legislature could potentially, after the fact, either by filing a brief or more likely by just passing a new law, flip the result of an election after that election has already happened. How likely a scenario is this? I mean, we've got challenges in Wisconsin and Pennsylvania. You mentioned another one in North Carolina. Is there a fair chance that this election ends up being decided in the Supreme Court of the United States? So I think it's the answer to that probably depends on how close the election is and how close

it is in several key states. You know, if Biden wins Pennsylvania by, you know, six, seven, eight points, I think even this Supreme Court would have a tough time coming up with the way to throw out that many ballots. But if the election is close, you know, we've already seen that the Supreme Court is willing to say that potentially tens of thousands of ballots need to be thrown out. So in a close election, I think that there's a very high likelihood that it's going to wind up coming down to the court. And how prepared are the Biden and Trump campaigns to deal with something like that? So, I mean, both parties have massive legal teams and legal war chests. You know, the Republican Party, it's been reported,

had a $20 million war chest for election-related litigation. The Democratic Party has a huge operation. They've brought in Don Verrilli, who is the former Solicitor General of the United States. So both parties are preparing and are bringing in their big guns. No one's going to be surprised by election litigation, and no one's going to be unprepared in the sense that they won't have the lawyers. The problem is that there's a six to three Republican Supreme Court, and there is uncertainty as to whether that court is going to follow the law or whether it's going to come up with new rules that might benefit Trump.

Well, that's a lovely place to leave it, Ian. Thank you so much. Ian Millhiser, he writes about the Supreme Court over at Vox.com, where you can find his article on this Wisconsin ruling and many, many more. This is Today Explained. Thank you.