After handing down orders in a spate of challenges to states’ efforts to make voting easier during the coronavirus pandemic, the Supreme Court is catching its breath. But the pause may be short-lived. In several opinions that conservative justices have issued over the past week, a radical idea is rising from the ashes, resurrecting language from one of the most fraught decisions in the court’s history.
Four justices — Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas — have resuscitated a half-baked theory three justices espoused in Bush v. Gore to let Republicans trash ballots after Election Day. Chief Justice John Roberts has not joined his four colleagues in this misadventure. But if the recently seated Justice Amy Coney Barrett sides with the quartet, America could be in for a battle that makes Bush v. Gore look tame.
By shutting down a recount in Florida that could have put Al Gore over the top in the 2000 election, the Supreme Court effectively handed George W. Bush the keys to the White House. The majority reasoned that disparate methods for interpreting the infamous “hanging chads” on Florida’s punch-ballots denied the state’s voters the equal protection of the laws, violating the 14th Amendment.
But then-Chief Justice William Rehnquist, joined only by Scalia and Thomas, would have gone further. In a concurring opinion, he scolded Florida’s Supreme Court for misapplying the state’s election law. He leaned on the electors clause of the Constitution, which says “each State shall appoint” its slate of presidential electors “in such manner as the legislature thereof may direct.” By meddling with what Florida’s legislature had done, Rehnquist concluded, its highest court had violated the Constitution.
Last week, in an opinion blocking an extended ballot deadline in Wisconsin, Kavanaugh highlighted this minority rationale from Bush v. Gore — the first such reference to that infamous decision since 2000. The “text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws,” Kavanaugh argued. Rehnquist had “persuasively explained” this two decades ago in his concurrence, Kavanaugh claimed, and the court had “unanimously” affirmed it in Bush v. Palm Beach County Canvassing Board, an antecedent to Bush v. Gore.
But that’s fake history. Rehnquist spoke for just three justices. And in its unanimous Palm Beach ruling, the court pointedly declined to resolve whether it had the authority to set aside a state court decision regarding state electoral law. Instead, it sent the case back so the Florida Supreme Court could explain how its decision setting terms for the ongoing recount took account of the electors clause. Kavanaugh’s “history” was gratuitous as well as mistaken: The case from Wisconsin concerned a federal court order extending the ballot-receipt deadline — it had nothing to do with state courts reviewing state legislation.
In the days since the Wisconsin order, Kavanaugh has been mum. But in opinions lamenting the court’s refusals to block extended ballot deadlines in Pennsylvania and North Carolina, his fellow conservatives have taken up the torch. Without a watchful Supreme Court, Alito wrote in the Pennsylvania case (joined by Gorsuch and Thomas), “a state court could override the rules adopted by the legislature, simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.” And in the North Carolina order, Gorsuch lamented that a six-day extension to the ballot-receipt deadline “do[es] damage to faith in the written Constitution as law, to the power of the people to oversee their own government, and to the authority of legislatures.”
This ascendant chorus from the Supreme Court’s most conservative bloc is frightening. It affords exclusive and unbounded power to state legislatures to set the terms of federal elections without oversight from or supplementation by any entity including any court — state or federal. And it clashes with the checks and balances that animate our federal system.
Consider how state legislators could be used to warp elections if this absolutist vision were to prevail. Legislators could ignore the results of the statewide popular vote and just name their largest campaign contributors — or themselves — as electors. Does a fundamental right to vote spelled out in virtually every state constitution preclude these blatantly antidemocratic moves? Maybe on paper, but under the theory of Kavanaugh, et al., it seems state courts have no power to enforce such a provision: the legislature is supreme. State legislators could scrap elections entirely, if they like. Article II of the Constitution gives them unlimited power.
Sound absurd? That’s because the whole argument clashes with core features of America’s constitutional design. State legislatures have wide latitude to specify how elections are conducted and how electors are appointed, as the Supreme Court held in 1892. But in 2015, the court clarified in a dispute over Arizona’s redistricting that “legislature” refers broadly to a state’s lawmaking process rather than simply to the building where lawmakers gather. In all states, a governor must sign a bill before it becomes law. Do the four conservative justices really believe a legislature may dictate an election’s result without overriding the state governor’s veto?
There is no mistaking the message the Right-Wing Four are inviting Barrett to join: Any measures not explicitly endorsed by a state’s legislature can be overturned by the Supreme Court — even if local authorities are reasonably striving to facilitate voting during a pandemic in a manner that upholds the state’s constitution.
On Halloween, Texas Republicans brought this extreme theory to a federal district court in a quest to throw out more than 100,000 “drive-thru” ballots in the Democratic stronghold of Harris County. They say the electors clause and the elections clause of Article I, section 4 (giving states authority to regulate the “time, places and manner of elections”), empower a federal judge to trash ballots collected through a measure adopted by a county clerk to keep voters safe. Why? Because that measure “circumvent[s] the Texas Legislature”!
The absurdity of the Kavanaugh approach can be seen by reflecting on a parallel constitutional passage empowering a legislative body: the national Legislature. Article I, section 8 says “Congress shall have the power to . . .” tax, spend, borrow money, regulate interstate commerce, and do a number of other “necessary and proper” things. Are we to take these declarations to mean federal officials cannot implement federal laws in ways designed to keep people safe? Of course not. That Congress can legislate free of oversight from the federal judiciary? Again, no. The Bill of Rights, among other constraints enforced by the Supreme Court, curbs all these powers.
Likewise, each state’s supreme court enforces its constitution to ensure the lawfulness of what its legislature does. Yet four members of the US Supreme Court are poised to strike down state court decisions — applying state constitutional rights — that serve as a check on state legislatures. In last week’s Pennsylvania case, Justice Alito invited Republicans to renew their plea after Election Day. He seemed to promise a receptive audience for a request to trash ballots arriving after Nov. 3: If you keep those votes separate from the on-time arrivals, he wrote, we’ll have an easier time shredding them.
It’s hard to imagine a better way to suppress voting and to confuse voters days before a presidential election. Go ahead and mail in your ballots or drop them off curbside, Americans. They’ll count when you cast them — but maybe a week or two later they won’t count anymore. Alito and his colleagues would do well to listen to their late colleague, Antonin Scalia — Barrett’s former boss and mentor. “Count first, and rule upon legality afterwards,” he wrote in his own opinion in Bush v. Gore, “is not a recipe for producing election results that have the public acceptance democratic stability requires.”
Laurence H. Tribe, the Carl M. Loeb University Professor and professor of constitutional law emeritus at Harvard Law School, is coauthor, most recently, of “To End a Presidency: The Power of Impeachment” (with Joshua Matz). Follow him on Twitter @tribelaw. Steven V. Mazie is the Supreme Court correspondent for The Economist and professor of political science at Bard Early College in New York City. His most recent book is “American Justice 2015: The Dramatic Tenth Term of the Roberts Court.” Follow him on Twitter @stevenmazie.