The Vote And Voting Problems, Pre-Election Day 2020

Earlier this week, the Supreme Court issued an order that seemed like a win for Democrats in the key swing state of Pennsylvania. The justices split 4-4 on a request from state Republican officials to block a Pennsylvania Supreme Court decision that allows for the counting of mail-in ballots that are received up to three days after Election Day.

Seems like that’s the end of that, right? Well…not really. The order from the Supreme Court justices wasn’t a ruling (there wasn’t even an explanation of their reasoning), and it didn’t uphold the state court decision. The justices merely split on the question of whether the state Supreme Court ruling should be blocked, which meant that the lower court’s ruling automatically stood. That leaves an opening for Republicans to bring the case back to the court when it once again has a full complement of nine justices — i.e., after Judge Amy Coney Barrett, who seems likely to be confirmed by the Senate early next week, is sworn in.

In fact, Pennsylvania Republicans resurrected their claim yesterday in a new case filed in federal court that they claim also raises new legal issues for the court to consider. Another lawsuit could also plausibly end up at the Supreme Court if the margin in Pennsylvania is close enough that whether late-arriving ballots are counted could decide the outcome.

It’s very possible, then, that the Supreme Court could be ruling again soon on the Pennsylvania mail-in ballot deadline. And with another solid conservative vote, the outcome could very well swing in the other direction.

A legal fight over whether counties can offer more than one ballot drop site still rages on in Texas, but one other state has finally settled the matter: Voting-rights groups suing Ohio over its rule that ballot drop boxes must be located only at county election offices have dropped their case.

We’ve gotten two high-profile Supreme Court orders on election-related issues in the past week — one from Pennsylvania and one from Alabama. In the Pennsylvania case, the court deadlocked 4-4, leaving in place a ruling from the Pennsylvania Supreme Court that allowed election officials to count some late-arriving mailed ballots. In the Alabama case, the order was 5-3, with the conservatives in the majority and the liberals dissenting, and as a result, Alabama state officials are now allowed to block counties from offering curbside voting.

This is in addition to a handful of other voting-related cases the Supreme Court has weighed in on since the pandemic began. With a few exceptions, the court has mostly ruled against loosening restrictions designed to make voting easier during the pandemic. That’s not exactly a surprise, given the conservative Roberts court’s record on voting rights — but what’s weird about all the rulings is how little information the justices have imparted about why they’re ruling in the way that they did.

Take the Pennsylvania case. The justices’ decision came down in the form of two brief unsigned orders, which merely listed the four justices who would have dissented. The Alabama case, meanwhile, included a dissent from Justice Sotomayor, which the other liberals joined, but there was radio silence from the five conservatives in the majority.

This isn’t abnormal behavior for emergency applications to the court in general. But as the election draws closer and more Americans cast their ballots, the lack of explanation is increasingly perplexing. Several election law experts have told me that the justices may be making lower court judges’ lives more difficult by not outlining why some restrictions have been upheld and others have fallen. In the absence of that guidance, appeals courts seem to mostly be defaulting to a more restrictive position.

There are a couple of cases still pending at the Supreme Court — one out of Wisconsin and one out of North Carolina. Of course, we will post an update here when those cases come down. But one thing we’ll be watching for, in addition to the outcomes of these cases, is whether the justices offer any more insight into how these momentous decisions are being made.