The Supreme Court decided Bush v. Gore 20 years ago, turning over the presidential election to the Republican nominee — and it might now be at it again. A bloc of four conservative justices went out of their way just last week to signal that they are ready to throw out mail-in ballots in post-election litigation if given the right chance.
What does that "right chance" look like? Those four justices — Brett Kavanaugh, Samuel Alito, Neil Gorsuch and Clarence Thomas — laid out a troubling foundation for it when asked by Republicans in North Carolina, Pennsylvania and Wisconsin to help throw out ballots that arrive by mail after Election Day.
The justices went out of their way to repeatedly endorse something called the Independent State Legislature Doctrine, which posits that only state legislatures (under Article II of the Constitution) have the constitutional authority to supervise presidential elections. This novel constitutional theory conceivably could eliminate almost any check by state courts on state legislative decisions about the structure of presidential elections, whether it's voting deadlines, procedures or anything else. State legislatures might be able to violate even their own state constitutions when setting up presidential elections — and be exempt from state court review of what they decide.
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To be clear, the Independent State Legislature Doctrine is neither established nor persuasive legal theory. It is, in fact, contrary to established precedent, which has held that the Constitution's delegation of authority to state legislatures means legislatures have the power to decide presidential election rules through the usual state lawmaking process, subject to state court review. The thin reed on which the Independent State Legislature Doctrine hangs is a one-off reference to a concurrence in Bush v. Gore itself — joined by only three justices — that suggests that the federal courts should restrict extreme state court interpretations of state law, but which actually says nothing about the illegitimacy of state court review of state presidential election law as a general matter.
If the four conservatives were to get their way, they could, in the wake of the elections, simply throw out the extended deadlines and other rulings on which voters relied.
Kavanaugh last week further made it clear — in an error-prone concurrence in a case overruling a trial court extension of the mail voting deadline in Wisconsin — that he would also vote to limit state court extensions of mail ballot deadlines if given the right chance. Echoing President Donald Trump's yearlong complaints about mail voting, Kavanaugh protested that states should "be able to definitively announce the results of the election on Election Night, or as soon as possible thereafter." There would be, Kavanaugh argued, "chaos and suspicions of impropriety ... if thousands of absentee ballots flow in after Election Day and potentially flip the results of an election."
This argument obviously outraged Democrats (and Kavanaugh's colleague Justice Elena Kagan) because counting legally cast mail-in ballots that arrive by an established legal deadline cannot "flip" the election result, because, until those and all other votes are counted, there is no election result to flip. (Votes cast later on Election Day don't "flip" the election result if they differ from those cast earlier in the day for the same reason.)
But Kavanaugh's telling slip proved that he has already made up his mind about what he wants to do next.
And he's not alone: Although the Supreme Court, because of Chief Justice John Roberts' opposing vote, decided not to intervene in the Pennsylvania mail-in ballot deadline case last week, Alito nonetheless declared that there would be time after the election for the court to do so — and he invoked the Independent State Legislature Doctrine, specifying that the court could revisit the state's mail ballot deadline under the doctrine after Election Day.
Only one thing is likely to have kept the court's conservatives from establishing the as-yet unestablished Independent State Legislature Doctrine before Election Day: Justice Amy Coney Barrett was confirmed too late to participate in the election cases decided thus far. But because she refused to commit to recusing herself in the very foreseeable election cases still to come, she now can cast the decisive fifth vote if the court does decide a critical election case that swings the election results — as the court did in Bush v. Gore.
If the four conservatives were to get their way as Kavanaugh and Alito described, they could, in the wake of the elections, simply throw out the extended deadlines and other rulings on which voters relied, which were set by state courts, governors, secretaries of state and election boards, and invalidate tens of thousands of ballots with no recourse for voters. Indeed, with Alito's approval, Pennsylvania already pre-emptively agreed to separate all mail-in ballots that arrive after Election Day but before the state deadline of Friday, so the state will know which ballots to throw out in case the Supreme Court orders it to do so. (If the state hadn't done so, it could have been forced by the courts to throw out even more ballots if all mail-in ballots had been mixed together regardless of when they had been received, making them impossible to differentiate.)
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The looming question now is whether Roberts can hold off his conservative colleagues from establishing new, ugly precedents if the "right" case gives them a chance to swing the election to Trump. Much would have to fall into place before such a case lands in their laps: They would need a close election in which invalidating an identifiable batch of ballots would be determinative, and they'd have to be able to invalidate those ballots under the novel legal theory they've flagged for Republican lawyers that they'd be willing to establish.
But it could happen; it happened in Bush v. Gore, a case in which three current justices (Roberts, Kavanaugh and Barrett) worked on George W. Bush's team. If Barrett joins Kavanaugh, Alito, Gorsuch and Thomas against Roberts, the chief justice's opposition to upending state court review won't matter. Instead, she'll become the fifth vote in another fateful majority, determining that the presidential election is decided in court rather than by the voters.