These so-called “naked ballots” could have major consequences given Americans are expected to vote by mail in bigger numbers than ever before because of the coronavirus pandemic. Polls show Democrats are far more likely to vote by mail than Republicans – meaning they have the most to lose if officials reject a substantial number of postal ballots.
Philadelphia city commissioner Lisa Deeley, a Democrat, warned that the court’s decision put more than 100,000 postal votes in Pennsylvania at risk, based on past error rates.
In the 2016 election, Donald Trump defeated Hillary Clinton in Pennsylvania by just over 44,000 votes.
Republicans are moving quickly to fill Supreme Court seat left vacant by Ruth Bader Ginsburg’s death.Credit:AP
In a letter to the Republican leaders of the state Senate and House of Representatives, Deely warned that the court’s naked ballot decision could make Pennsylvania the “subject of significant post-election legal controversy, the likes of which we have not seen since Florida in 2000.” She asked the legislators to eliminate the secrecy sleeve requirement – a request they quickly rejected.
A stoush over Pennsylvania’s “naked ballots” is just one of the possible conflicts that could play out through the courts if the result between Trump and Democratic nominee Joe Biden is close on election night. Each state uses its own particular electoral rules, raising the chances of a variety of different legal challenges across the country.
Trump set off a firestorm on Thursday (AEST) by saying he would not necessarily accept the peaceful transfer of power if he does not accept the election result.
A widely-read article in The Atlantic this week said that Republicans have discussed taking the remarkable step of bypassing the will of the voters in crucial states if they are behind in the count. It is actually the 538 members of the Electoral College – the so-called “electors” – who decide the presidential outcome.
This fact is rarely discussed and even the most plugged-in political insider would be unable to name any of the electors, who are appointed by state party members and officials. That’s because, with only rare and usually inconsequential exceptions, the electors cast their ballots in accordance with the election result in their state. But that is not dictated by the US Constitution.
“With a justification based on claims of rampant fraud, Trump would ask state legislators to set aside the popular vote and exercise their power to choose a slate of electors directly,” The Atlantic article said.
Heightening the stakes even further is the Supreme Court seat left vacant following Ginsburg’s death.
It initially seemed unlikely that Republicans would be able to fill the progressive icon’s seat before the election: the confirmation process for a Supreme Court justice typically takes around three months but there were just six weeks remaining until election day.
But Republicans are moving with Usain Bolt-like speed to get a replacement justice onto the court. Trump is expected to confirm on Sunday (AEST) that his pick is conservative rising star Amy Coney Barrett, currently a circuit judge on the US Court of Appeals. On Saturday, several US media outlets reported Trump had made his decision. Confirmation hearings will follow soon after.
Lindsey Graham, the Republican chair of the Senate Judiciary Committee, said this week: “We’ve got the votes to confirm Justice Ginsburg’s replacement before the election.”
This raises the prospect that a Supreme Court justice appointed by Trump just weeks earlier could cast the crucial vote in cases about contested election results.
Having a full complement of nine judges is important because, if the Supreme Court decision was to be tied, the ruling of the lower state courts would stand.
“I think this will end up in the Supreme Court, and I think it’s very important we have nine justices,” Trump said on Thursday (AEST) when speaking about a possible legal battle over the legitimacy of mail-in ballots.
“I think it should be eight-nothing or nine-nothing,” he said of the potential verdict. “But just in case it would be more political than it should be, I think it’s very important to have a ninth judge.”
Before any election-related disputes reach the Supreme Court, the justices are set to begin tackling a separate case where the consequences could be just as dramatic and far-reaching.
On November 10 – a week after the election – the Supreme Court is scheduled to hear oral arguments for California v Texas, a case that challenges the legality of the Affordable Care Act, also known as “Obamacare”. As one of the courts staunch progressive voices, Ginsburg was certain to vote to uphold the law which has expanded health insurance for millions of Americans and banned insurance companies from rejecting customers because they have pre-existing health conditions.
A court with a 6-3 conservative majority would be more likely to strike down Obamacare entirely or to weaken its protections.
“Among other things, the Affordable Care Act now dangles from a thread,” Nicholas Bagley, a healthcare law expert at the University of Michigan, tweeted soon after Ginsburg’s death.
In an appearance at the Texas Tribune Festival this week, Hillary Clinton, the Democrats’ 2016 nominee, said she was most concerned about the potential implications for Obamacare following Ginsburg’s death.
“What the Republicans are doing is rushing an appointment to the court to repeal the Affordable Care Act and strip away health care for many millions of Americans,” she said.
“This could not be more diabolical. And I think that Democrats need to be absolutely clear that any vote for any Republican is literally a vote to cost you money to make your health care more expensive and maybe to eliminate the possibility you’ll be able to afford it at all.”
Then there is the holy grail for conservatives: overturning the 1973 Roe v Wade decision that found women have the right to a legal abortion. Trump has made a point of appointing anti-abortion justices to the Supreme Court, and Barrett is a Catholic conservative who has criticised the Roe decision.
When Brett Kavanaugh was appointed to the Supreme Court in 2018, he appeared to lock in a 5-4 conservative majority on cultural issues like abortion. Many progressives feared that Roe would be quickly overturned after his appointment, but that’s not how it has worked out.
The reason is the influence of Chief Justice John Roberts, who was appointed by George W. Bush. Although Roberts is a conservative, he has taken noticeable recent steps to protect the court’s independence and to stop it from swinging dramatically to the right.
Chief Justice John Roberts has disappointed Republicans with several recent rulings.Credit:AP
When Trump denounced a judge who rejected his asylum seeker policy as an “Obama judge” in 2018, Roberts responded in a rare public comment: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
In June this year Roberts sided with the court’s four progressive justices and cast the decisive vote to strike down moves to restrict abortion access in Louisiana.
He also joined with the progressives to stop the Trump administration from proceeding with a plan to deport up to 700,000 young immigrants who arrived in the country illegally when they were children. He also ruled that the 1964 Civil Rights Act prohibits workplace discrimination on the basis of sexual orientation or gender identity.
All these decisions disappointed conservatives, who felt Roberts had betrayed them.
With the appointment of a sixth conservative, Roberts’ moderating influence as the Supreme Court’s crucial swing vote is likely to be diluted. The nightmare scenario Democrats envisaged when Kavanaugh was appointed may not have been averted, merely delayed.
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Our weekly newsletter will deliver expert analysis of the race to the White House from our US correspondent Matthew Knott. Sign up for The Sydney Morning Herald‘s newsletter here, The Age‘s here, Brisbane Times‘ here and WAtoday‘s here.
Matthew Knott is North America correspondent for The Sydney Morning Herald and The Age.