Regulation

High-stakes election disputes headed for Supreme Court

Greg Nash

The Supreme Court this week faced Republican requests to review voting rules disputes in key battleground states that could potentially shape the contours of the presidential race.

The justices on Friday agreed to hear a GOP bid to revive voting limits in Arizona, the first election-related fight to be taken up by the court following the death of Justice Ruth Bader Ginsburg, a stalwart liberal and fierce defender of voting rights.

Legal experts say the Arizona case is unlikely to be decided until after the Nov. 3 election. But also pending before the court are petitions from Republicans and their allies to take up cases concerning voting rules in Pennsylvania and South Carolina, and a dispute from Wisconsin may not be far behind.

Hundreds of election-related fights are currently playing out in lower courts in what is the most intensely litigated election in U.S. history. Broadly speaking, they encompass how ballots are cast and how votes will be counted, with disputes over everything from whether a witness must be present when completing an absentee ballot, to fights about mail ballot due dates.

The Republican National Committee has pledged $20 million this cycle to oppose Democratic-backed efforts to ease voting restrictions while Biden said his campaign has assembled 600 attorneys for election-related lawsuits.

The Supreme Court has already taken action — or refused to act — on several election-related cases this cycle, with the court’s majority generally choosing to defer to the wishes of state and local officials over voting rules.

Those cases were handled before Ginsburg’s death left the court with just three liberal justices. The court is now poised to shift further to the right with the anticipated arrival of President Trump’s third Supreme Court nominee, Judge Amy Coney Barrett, whose confirmation would cement a 6-3 conservative majority.

Trump, for his part, has predicted the Supreme Court will play a major role beyond the Nov. 3 Election Day. He has repeatedly claimed, without basis in fact, that an increase in mailed-in ballots will invite widespread voter fraud that require litigation to resolve.

“We need nine justices,” Trump told reporters at the White House four days after the Sept. 18 death of  Ginsburg. “You need that with the unsolicited millions of ballots that they’re sending. It’s a scam.”

The election-related disputes present the first tests of how the rightward-shifting court will approach voting rights. With the election a little more than a month away, it remains to be seen whether the court will resolve these or other election-related disputes before Nov. 3.

On Monday, Pennsylvania Republicans asked the justices to halt a major state court ruling that extended the due date for mail ballots. If it’s allowed to stand, the Pennsylvania Supreme Court’s ruling could help shape the race between Trump and Biden in the Keystone State, which the president won by just over 44,000 votes in 2016.

The Pennsylvania court’s decision earlier this month requires election officials to accept ballots postmarked by Election Day, as long as they arrive within three days. The ruling was seen as a win for Democrats, since Biden voters are more likely than Trump supporters to vote by mail.

In court filings, top officials from Pennsylvania’s GOP-held legislature and state Republican Party members asked the U.S. Supreme Court to pause the ruling while they formally appeal to the justices. The court set an upcoming Monday deadline for a reply brief.

The Arizona voting rights case was filed months ago but was discussed for the first time on Tuesday when the justices gathered privately for the first meeting of the new term.

The case concerns a bid by Republicans to reinstate a pair of Arizona voting restrictions that a lower court struck down as racially discriminatory. In ruling against the GOP, the 9th Circuit Court of Appeals said the voting limits had the potential to make it harder for people of color to cast ballots in the Grand Canyon State.

One of the disputed policies deals with how Arizona election administrators must handle ballots that are cast at the wrong polling place, or precinct. Under Arizona’s out-of-precinct rule, which has its roots in a policy that dates back to the 1970s, administrators are required to throw away any miscast ballot in its entirety.

Arizona Republicans say out-of-precinct policies are common across the U.S. and help ensure ineligible voters do not cast ballots in local races for officeholders who are running to represent a different geographic area.

But the 9th Circuit Court of Appeals found that in recent elections the rule disproportionately harmed Arizona’s minority populations, who tend to vote Democratic.

The second voting restriction at issue is a 2016 Arizona law that criminalizes the collection and delivery of another person’s ballot, a service which minority voters are overwhelmingly more likely to rely on than white voters. Republicans have also asked the Supreme Court to reverse the 9th Circuit Court’s decision to strike down the state restriction on the practice, which is sometimes referred to as “ballot harvesting.”

On Thursday, South Carolina Republicans asked the Supreme Court to reinstate a witness requirement for mail ballots. The court may also soon receive a GOP bid to reverse a ruling in Wisconsin that pushed back the battleground state’s mail-vote due date.

Biden allies may also ask the Supreme Court to review a pivotal court loss for Democrats in Florida. The case concerns a Florida law requiring nearly 800,000 felons in the state who have completed their sentences to settle their court debt before they regain the right to vote, even if they are unable to pay. Of the affected would-be Floridian voters with felony records, an estimated two-thirds of whom are Black, who tend to lean Democratic.

The Campaign Legal Center, a voting rights advocacy group that represents the challengers, told The Hill that it hasn’t made a final decision on whether to pursue an appeal in the Supreme Court.

“All I can say is that we are waiting for the dust to settle,” Paul Smith, the Campaign Legal Center’s vice president for litigation and strategy, told The Hill.

The general consensus among court watchers is that Democrats and their allies have enjoyed a better win-loss record than Republicans and conservative groups when tallying up the avalanche of election litigation.

But according to Jason Snead of the Honest Elections Project, one of the most prominent conservative groups involved in litigation, Democratic-allied victories are merely provisional. Snead, the group’s executive director, told The Hill this week that liberal wins are subject to appeal, and said he expects more cases to reach the high court. 

“A lot of the lawsuits that the left has filed have been declared as victories. But they’re still on appeal so we don’t know how those are going to shape up,” he said. “And we expect that a lot of stuff is going to work its way up through the circuit courts and Supreme Court too over the next few weeks.”

Tags 2020 2020 election Arizona Donald Trump Election Joe Biden Pennsylvania Ruth Bader Ginsburg Supreme Court Wisconsin

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