Voting and Counting: What’s SCOTUS Got To Do With It?

Between the hysteria and obsession with the Supreme Court, in general, and believing that it’s a bunch of hacks doing the Republican’s bidding, people seem oblivious to the fact that elections are run by states. Even federal elections. State legislatures enact the laws under which their state’s elections are run, and challenges to the laws are heard in state courts.

Because of COVID and the huge expansion of mail-in voting, combined with the push to get demographics that did not traditionally vote (the 18 to 29 cohort, for example), and the concurrent expansion of the franchise to people with prior felony convictions, this election is replete with novel issues that were poorly considered and left unaddressed until the last minute.

Adding to the morass is the fact that the United States Post Office, which has been in functional decline for a decade due to the reduced use of snail mail as a serious means of communication, has demonstrated a poor ability to both postmark first class mail and deliver it within normal parameters, if at all. The postal service has sucked for years, but suddenly everybody took notice and pointed fingers. After the election, it can go back to sucking and no one will care again.

Despite this, there is the new normal hysteria about how the Supreme Court, now with a full contingent of Trumpian ogres and trolls, will enable the Republicans to steal elections. They’re the ones making it impossibly hard to vote, refusing to count “valid” ballots just because they arrived three weeks after election day or were filled out in crayon with the faces of candidates drawn in the margins instead of circles fully filled in the requisite black pen.

Are the rules good or bad? Who knows. We have 50+ jurisdictions coming up with their own “solutions” to ever-changing societal needs that have largely been ignored except when they become the obsessive focus of attention, like now. The Republicans cry voter fraud while the Democrats cry voter suppression. Are the lines too long because there aren’t enough polling places or because far more people are voting in this election than anticipated by locals, who didn’t adequately prepare for the mad rush? Or both? Or neither?

There are two separate issues at stake, whether the states, many of whom have vastly different rules about voting, have done an inept job of managing their voting and vote-counting rules, and who gets to decide whether those rules are enforceable. And the second issue raises yet a third: if the rules are, for whatever reason, not enforceable, then what should the rules be?

States do their voodoo as far as determining how voting and vote-counting should happen, and then challenges go to state courts to determine whether the process comports with state constitutions and laws. Yet, there is a pervasive narrative that this should all end up in the Supreme Court of the United States, whose job it then should be to come up with its own flavor of rules that somehow enable whatever people believe to be the “right way” to vote, whether by enabling as many people to vote as easily, and whenever, they can or limiting voting to make sure that people who aren’t allowed to vote don’t sneak in a ballot or two.

What does the Supreme Court have to do with it?

No Supreme Court case before 2000 ever tried this maneuver to upend a decision by a state court on state law, and in Bush v. Gore itself, only three justices, led by the chief justice at the time, William Rehnquist, claimed that the federal Constitution made them the ultimate word on the meaning of state election codes.

Until this week, only Justice Clarence Thomas, writing for himself, had ever invoked any aspect of Bush v. Gore as good law. But on Monday evening, ominously, Justice Brett Kavanaugh repeatedly endorsed Rehnquist’s Bush v. Gore concurrence, claiming that the Supreme Court should feel free to second-guess state court interpretations of state election law whenever presidential elections are at issue.

“The text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws,” he wrote in a footnote to a decision in which the court refused, 5-3, to extend Wisconsin’s deadline for receiving absentee ballots to six days after the election.

For those not alive when hanging chads were all the rage, the outcome of the presidential election hinged on the counting of one of the worst designed ballots conceivable,* which naturally was how Florida decided to improve its voting method. As an aside, the old days of mechanical voting machines had two primary virtues. They were viscerally satisfying to use, pulling a lever was fun and fulfilling, and they were easily and swiftly counted without confusion. So naturally, there was a push to fix what wasn’t broken, because that’s what we do.

What was happening in Florida turned into a national disaster, an election hinging on an insanely bad state decision, and the war over how to count the ballots was unresolvable, leaving a nation in the hands of the smartest people in Florida. So the Supreme Court stepped in with Bush v. Gore, seizing upon the Equal Protection Clause to stick its nose into Florida’s fiasco.

And the Supreme Court subsequently held that Bush v. Gore was an egregious overreach that needed to go away.

In fact, this part of Bush v. Gore has already been squarely rejected by a landmark 2015 case, Arizona Legislature v. Arizona Independent Redistricting Commission. Writing for the court in one of her greatest opinions, Justice Ruth Bader Ginsburg — who had emphatically dissented in Bush v. Gore — made clear that when Article I of the federal Constitution empowers the “legislature” of each state to regulate various aspects of congressional elections, the word “legislature” means the lawmaking process set up by a state’s constitution: Nothing in the federal Constitution, she said, “instructs, nor has this court ever held, that a state legislature” may regulate “federal elections in defiance of the provisions of the state’s constitution.”

And yet, here we are, with cases coming before the Supreme Court and the gravely immodest opinion of Justice Kavanaugh contributing only more fuel to the fire.

Thus, when a state court construes a state election statute to align it with a state constitution’s right-to-vote principles, that state court is doing exactly what the federal Constitution and binding federal precedent authorize.

You may hate the way a state handles its elections, and be passionately outraged that your president may be decided by its choices, which you’re absolutely certain are terrible and unfair. But that’s the way our federal electoral system is constructed, that states get to make their own rules and choices, and no matter how much we disagree with them, neither we, nor the Supreme Court, get a vote.

*At the time, my then-elderly mother, who lived in Palm Beach County, explained to me that I had no idea how hard it was to figure out how to use the ballot. It was terribly confusing, and the chads were too hard for olds to work. That the election of the President of the United States of America should hinge on someone like my mother’s ability to figure out how to use a ballot was a matter of some serious concern.

6 thoughts on “Voting and Counting: What’s SCOTUS Got To Do With It?

  1. John Barleycorn

    Shadow Docket Blues isn’t a song yet?

    And so it was determined that on the 60th day the power would be set free to power itself through to the other side only to land on the beaches of irrelevancy with the ghosts of Harry and Mitch serving up the Kool-Aide to the sounds of hollow echoing surf murmuring sixty, sixty, sixty-votes as it breaks over sixty eroded rocks on the point.

    But the witches in robes flying about cackling is pretty cool don’t you think?

  2. cthulhu

    As a kid, I always thought it was strange that the teevee news talked about and showed “voting machines”, and when my dad took me to the polling place with him, he made x’s on a piece of paper. I felt ripped off.

Comments are closed.