The Supreme Court’s decision this week to bar all absentee and mail-in ballots in Wisconsin received after election day has nothing to do with U.S. law or the U.S. Constitution, and everything to do with politics.
For decades, conservative judges–including the Republican-appointed justices on the Supreme Court–have declared themselves to be “strict constructionists” of the Constitution, restraining them from weighing in on issues and cases where there are no clear-cut violations of any constitutional provision or federal law. All this high-minded talk of restraint, however, has been swept away by this purely political ruling designed to tip the scales of justice in the incumbent president’s favor. In a 5-3 decision released minutes before the Senate vote Monday night on Amy Coney Barrett's appointment to the Court, it rejected Democratic calls to reinstate a six-day extension for the receipt of mail ballots in Wisconsin, giving no explanation for the decision.
This Wisconsin decision, which defies basic principles of fairness and logic, sets the stage for the rejection of ballots postmarked before election day but received after it, through no fault of the voters and the product of an intentionally disabled postal service. This decision is particularly egregious since Trump-appointed Justice Brett Kavanaugh felt compelled to weigh in with a baldly political opinion lending credence to Trump’s unsubstantiated view that votes counted after election day would necessarily be tainted by fraud. Kavanaugh warned that “charges of a rigged election could explode” if late-arriving ballots change the perceived outcome, as if the election should be arbitrarily viewed as over on election night, even before all the ballots were counted. Kavanaugh further spoke about election results being “flipped” by ballots counted after election night, as if mail-in votes were of less worth than in-person votes counted on election day.
With two other swing states–Pennsylvania and North Carolina–facing similar challenges to voting procedures, the outcome of those cases before the Supreme Court could well decide the outcome of the election if it is close, just as the court decided the 2000 presidential election in favor of George W. Bush.
The Supreme Court’s willingness to wade into the murky waters of the selection of state electors may be fatal to its credibility and image as the dispassionate and objective final arbiter of all significant constitutional disputes. The United States Constitution and U.S. law explicitly give Congress–not the Supreme Court–the final say on all issues relating to contested electoral slates from any state. Moreover, the selection of presidential electors is primarily a question of state law, not federal or constitutional law.
Federal law requires that electors convene in all 50 states and the District of Columbia to formally cast their votes for president and vice president in mid-December–this year on December 14. On December 8, six days before the electoral colleges will convene, each state must certify its results to Congress. If they do not certify, or if there are two or more competing electoral slates submitted to Congress, then Congress can step in to resolve any potential dispute over which candidate won a particular state’s electoral college votes. This date, when the states must certify their electoral slate to Congress, is known as the “safe harbor deadline,” up until which states have complete control over the selection of their electors without passing the baton to Congress to decide the issue. Thus, the operation of the electoral college and selection of electors is purely a state and congressional matter, not one for the Supreme Court.
January 6, 2021 is the next crucial date in the electoral process, since that’s when the vote count is finalized and certified, with the state electors sending certificates of their vote to their state's chief election official, the National Archives, and the current president of the U.S. Senate. This is the day when the sitting vice president, acting as the Senate president, presides over a joint session of Congress to read aloud the certificates cast by the electors representing all 50 states and D.C. in alphabetical order to finalize the vote count. If no members of Congress object to any of the certificates in writing, the Senate president officially certifies the selection of the president-elect and vice president-elect. If there are objections, they must be resolved based on congressional procedures.
The Supreme Court 2000 decision in Bush v. Gore was an anomaly, since the way that the Supreme Court got its foot in the door to decide that election was the argument that Florida’s varying recount policies between counties violated the Equal Protection Clause of the Fourteenth Amendment by arbitrarily giving greater weight to some votes as compared to others.
Absent a repeat of that fiasco, the Supreme Court should have no role–and certainly not the final say–in the outcome of the 2020 election. Unlike some other countries, the U.S. Constitution does not provide for a U.S. Election Commission to be the final arbiter of national and presidential elections and the official body to certify the results of those elections. Maybe it should have such a commission, and this is certainly fertile ground for debate as to whether the Constitution needs another amendment to provide for one. But until then, it is Congress–not the Supreme Court–that has the final say on the issue, and the Supreme Court should not be permitted to usurp this clear constitutional delegation of power.