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How Amy Coney Barrett's confirmation may ring in a new era of mass voter suppression

Cases in Wisconsin, Pennsylvania and Texas show conservatives believe it legal to prevent people from voting en masse in case a few might commit fraud.
Image: Amy Coney Barrett Is Sworn-In As New Supreme Court Justice At The White House
Supreme Court Associate Justice Amy Coney Barrett participates in a ceremonial swearing-in event as her husband Jesse Barrett looks on at the White House on Oct. 26, 2020.Alex Wong / Getty Images

Mere hours before the President Donald Trump and Senate Republicans rushed through Amy Coney Barrett confirmation to the Supreme Court Monday — barely a week before the election — that court ruled against efforts in Wisconsin to make sure that all absentee ballots would be counted. In a 5-3 decision, it struck down a lower federal court ruling that would have allowed the state to count ballots postmarked by Election Day and received by Nov. 9, instead of only those received by Nov. 3. The extension, desired by the states' Democrats, was an attempt to account for the effects of the pandemic on voters as well as statements by the U.S. Postal Service that it could no longer guarantee on-time delivery of ballots to voters or back to the state.

At least one similar election law case from the pivotal swing state of Pennsylvania may now allow Barrett to accomplish much the same there, and directly aid in the president's re-election efforts. But even if the Supreme Court ultimately does not intervene in Pennsylvania, Barrett's elevation will consolidate control of the court by judges who are not just remarkably hostile to voting rights, but who have also increasingly held that a state's interest in preventing a small number of fraudulent ballots from being cast — none of which have been shown to affect a race — trumps Americans' broad access to the franchise.

In the first Pennsylvania case, the state Supreme Court held that the deadline for receiving mail ballots should be extended until Nov. 6 in response to a request from the state's Democratic secretary of state. That came after Trump Postmaster General Louis DeJoy's underlings informed the state in July that the Postal Service could no longer guarantee on-time delivery of ballots as in previous years.

The extension was challenged by the state Republican Party, which asked the U.S. Supreme Court to stay the September decision — with less than two weeks to go before the election — and thus force the state to throw out any ballots received after 5 p.m. on Nov. 3. Last Tuesday, the Supreme Court rejected the Republicans' request, but only because it was deadlocked 4-4, with Chief Justice John Roberts joining the court's three remaining Democratic nominees. (In Monday's Wisconsin decision, Roberts finally explained that he sided with the state in Pennsylvania because the decision to extend the deadline was made by a state, not a federal court.)

In anticipation of Barrett's confirmation, though, Pennsylvania Republicans have already refiled their case, asking to be heard fully on the merits before the election, in the hope that the court will allow them to suppress more votes.

The Pennsylvania state Supreme Court has also unanimously held that mail-in ballots can't be thrown out based on signature comparisons conducted by "county election officials or employees, or as the result of third-party challenges," without some sort of recourse for voters. With no law on the books identifying such recourse for voters and with efforts to pass any stalled in the Legislature, there will be no signature challenges in Pennsylvania this year akin to the "hanging chads" debacle in Florida in 2000 — unless the Pennsylvania GOP challenges that decision, too, and gets Barrett on its side.

There is, of course, no guarantee that Barrett will provide the fifth vote to throw the Pennsylvania election into chaos at the last minute — the fervent hopes of the state's Republicans notwithstanding.

It is true that she does seem likely to share the views of Trump's two other nominees, Justices Neil Gorsuch and Brett Kavanaugh, that the court should ignore its usual practice of not intervening in elections at the last minute, even if it means taking the radical step of overruling a state court's interpretation of its state's own law. But for her to provide the fifth vote to help Trump win an election he otherwise seems poised to lose (at least in terms of the popular vote) before she has been on the court for even a week would also be issuing a written invitation to Democrats to begin expanding the size of the court itself.

She could decide that, at least before Election Day, discretion is the better part of valor — but given her intellectual compatriots' reasoning in the Wisconsin case, it seems foolhardy to rely on her discretion or valor.

But even if the court ultimately leaves the Pennsylvania elections alone, 2020 has been a disastrous year for voting rights, as conservative judges have consistently upheld vote suppression measures targeted at Democratic voters while striking down attempts to expand access to the ballot.

Republicans believe any (real) burden on the right to vote is justified in the name of combating (imaginary) voter fraud.

Just last week in a party-line vote, the Supreme Court (despite an angry dissent by Justice Sonia Sotomayor) allowed Alabama's secretary of state to ban counties from allowing voters who are disabled and/or are particularly vulnerable to contracting Covid-19 to have access to curbside voting. Despite a district court finding that Alabama's actions violated the Americans With Disabilities Act, Roberts and the four other Republican justices — working remotely because of the risk of contracting the coronavirus, needless to say — held that immunocompromised Alabamians should face a choice between waiting indoors to vote, with no requirement that people be masked, or forfeiting their franchise.

It is one of the ugliest episodes in Roberts' long, obsessive history of undermining the right to vote.

The contemporary Republican contempt for voting rights was effectively summarized this month by a panel on the fanatically right-wing 5th Circuit Court of Appeals. With the presidential race in Texas looking closer than it has been in decades, Texas Gov. Greg Abbott has been frantically engaging in some distinctly unsubtle vote suppression measures, the most notable of which was to forbid Harris County — a majority-Democratic county the size of Rhode Island, with nearly 5 million residents — from having more than one drop off box for early ballots.

But in a lesser-known case similar to the Pennsylvania situation, lower courts in Texas tried to protect voters by stating that, if local officials determined that signatures on mail-in ballots were different from the ones on file, they had to notify voters in time to allow them to remedy the defect. The 5th Circuit, though, not only upheld Abbot's view that the state could throw out ballots for alleged technical defects without notifying voters in a timely fashion — the state can currently take as long as 10 days after the election — or giving them a chance to fix their ballots. It also denied that voters have any due process rights at all. In a stunning passage, Judge Jerry E. Smith, a nominee of Ronald Reagan, asserted that "Texas's strong interest in safeguarding the integrity of its elections from voter fraud far outweighs any burden the state's voting procedures place on the right to vote."

In other words, any (real) burden on the right to vote is justified in the name of combating (imaginary) voter fraud.

In one sentence, Smith has captured the Republican position on the right to vote, which seems to be slowly catching hold in the courts: Stopping a few people, who have never changed the results of an election, from casting fraudulent ballots is more important than making sure everyone can vote, which might coincidentally change the result of a great many elections.

With Barrett's confirmation putting six justices with this worldview on the Supreme Court, expanding the number of justices on the court might be necessary for the preservation of American democracy, but it will almost certainly be necessary for the preservation of the franchise.