Notice: This article does not necessarily reflect the views or beliefs of the Campbell Law Observer. It is merely an observation from a personal experience and written in good faith under the tenet of free expression of ideas. “Censorship is telling a man he can’t have a steak just because a baby can’t chew it.” – Mark Twain
Twenty-twenty (hereafter “2020”) has just not been our year. We have battled a virus, lost heroes, exercised our political rights, and endured life in quarantine. To top it all off, the tumultuous nature of this year has only increased partisan discord, further increasing the political polarization. And wouldn’t you believe, of all years a pandemic could happen, it occurred just in time for the 2020 Presidential Election – an election that very well could decide the direction of our country for the next generation.
2020 Election – The Stakes
“How” you might ask? Because the winner of this election will have the privilege of filling any Supreme Court seats that may become vacant within the next four years. With the oldest Justices being Democrat-elected ones, the likelihood of a political spectacle seems rather definite. The aging (yet ever-youthful) Justice Ruth Bader Ginsberg (“The Notorious RBG”) is turning 88 years old in 2021. (Update: In the time since beginning the writing of this article, I write with a heavy heart that the honorable Justice Ruth Bader Ginsberg passed away on September 18, 2020, at the age of 87 from a hard-fought battle with pancreatic cancer. In the wake of her death, Republicans have since confirmed the nomination of Judge Amy Coney Barrett to the newly vacated seat just days before the 2020 election. This turn of events has simply exacerbated the intensity and importance of this election. You could not make this stuff up if you tried. 2020 is officially Murphy’s Law exemplified.) Justice Breyer, 82, is not far behind her, as well as already surpassing the average age of retirement from the Court. Conversely, the three newest Trump-nominated Justices are the youngest on the Court: Kavanaugh, 55; Gorsuch, 53; and Barrett, 48.
With the modern sensationalism of Supreme Court confirmations, as well as the normality of 5-4 Supreme Court splits along party lines, neither party is going to acquiesce to the opposing party’s nominations. Supreme Court decisions like Brown, Roe, Obergefell, and plenty others, demonstrate that the Supreme Court has the ability to shape our society and even our Presidential election process. Mix a pandemic with the magnitude of this election and you just might just get a Bush v. Gore Part II. Only this time, with the abject degree of political polarization, if the Supreme Court is called upon to decide the winner, would the legitimacy of the election be accepted?
The Fun Has Already Begun: Polls and Mailboxes are Open
As it stands, a few states will conduct the general election in November exclusively by mail, but Texas has recently been the battleground of litigation regarding a mail-in voting statute. Texas law allows voting by mail for (1) absentees (those away from home for all of early voting and on election day), (2) voters age 65 or older, and (3) those with a disability which prevents them from voting in person. This law was challenged by Democrats seeking a declaration from a state court that any voter who considered themselves at risk of contracting COVID-19 could vote by mail. The law would allow individuals without established immunity to COVID-19, thus having a likelihood of injuring their health by voting in-person, to be considered “disabled” under the law. The Texas Supreme Court disagreed, ruling that a lack of immunity does not qualify a voter to apply for a mail-in ballot.
In response to the state Supreme Court’s ruling, in May, the Texas Democratic Party brought suit against Governor Greg Abbott in federal district court alleging that “the failure to allow voters under the age of 65 to vote by mail during the pandemic violates their federal constitutional right” (the & Equal Protection Clause of the 14th Amendment), reasoning that it “grant[s] voters age 65 and older additional voting rights than those under age 65.” The Court granted a preliminary injunction stating that “[a]ny eligible Texas voter who seeks to vote by mail in order to avoid transmission of COVID-19 can apply for, receive, and cast an absentee ballot in upcoming elections.”
However, the United States Court of Appeals for the Fifth Circuit, upon hearing the state’s appeal, blocked the injunction stating that the District Court’s ruling “will be remembered more for audacity than legal reasoning.” The Court of Appeals in rejecting the Texas Democratic Party’s argument held that “an election law abridges a person’s right to vote for purposes of the Twenty-Sixth Amendment only if it makes voting more difficult for that person than it was before the law was enacted or enforced.” On appeal to the Supreme Court, in a statement by Justice Sotomayor, the Court denied the Texas Democratic Party’s request for the Court of Appeal’s injunction to be canceled, stating that though the “application raises weighty but seemingly novel questions regarding the Twenty-Sixth Amendment,” she does “not disagree with the decision to refrain from addressing [the questions] for the first time here.” She concluded with “I hope that the Court of Appeals will consider the merits of the legal issues in this case well in advance of the November election.” Talk about an anticlimactic letdown, am I right?
RNC v. DNC – A Preview of Things to Come?
Back in July, the Supreme Court temporarily blocked an injunction that would have made it easier to vote by mail in Alabama during the Coronavirus but rejected Republican efforts to tighten mail-in voting rules in Rhode Island. This seems to suggest that the Supreme Court is unwilling to intervene in the “11th Hour,” i.e., the eve of the election, in hopes that the political process sorts itself out before November. However, the Supreme Court did weigh in on a fiasco taking place in Wisconsin back in April of this year.
In Wisconsin, the presidential primary was scheduled for April 7. In the weeks leading up to the primary, both the Democratic Governor and Republican lawmakers pledged to keep the polls open despite the escalating coronavirus outbreak. However, as COVID-19 cases continued to escalate in Wisconsin, Governor Evers reversed his decision with less than two weeks until the primary and requested that absentee ballots be sent to all of Wisconsin’s 3.3 million registered voters. This was impossible without consent from the GOP-controlled Legislature. Unsurprisingly, the Wisconsin GOP declined to postpone the election causing voting rights groups to file lawsuits seeking a delay in the election.
Wisconsin ended up deciding to proceed with the elections scheduled for Tuesday, April 7 but extended the deadline for receiving absentee ballots to Monday, April 13. However, five days before the election, without being requested by the plaintiff Democratic National Committee, the United States District Court for the Western District of Wisconsin ordered that absentee ballots mailed and postmarked after election day, April 7, still be counted as long as they are received by April 13. This essentially allowed voters to cast ballots for an additional six days after the scheduled election day, thus creating the, however unlikely, opportunity for voters to attempt to alter the election, i.e., finding or destroying votes, as results are coming in. The issue before the court was “whether absentee ballots must be mailed and postmarked by election day, April 7, as state law would necessarily require, or instead may be mailed and postmarked after election day, so long as they are received by April 13.”
The Court held that “in order to be counted in [the April 7 election] a voter’s absentee ballot must be either (i) post-marked by election day, April 7, 2020, and received by April 13, 2020 . . . or (ii) hand-delivered as provided under state law by April 7, 2020.” In the majority’s decision, it seemed to place great emphasis on the District Court’s unilateral decision to grant relief not requested by the plaintiff. The dissent, written by the late Justice Ginsburg, argued that the Supreme Court should not intervene at this late in the election. The majority struck back stating “[t]he Court would prefer not to do so, but when a lower court intervenes and alters the election rules so close to the election date, our precedents indicate that this Court, as appropriate, should correct that error.” The majority cited the Purcell Principle emphasizing that lower federal courts should ordinarily not alter the election rules on the eve of an election.
It must be noted that the majority stressed that its decision “should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID-19 are appropriate.” So, where does that leave us?
Pennsylvania and a Deadlocked Supreme Court
As constitutional issues relating to the election process continue to rise to the Supreme Court, the predominant legal issue appears to revolve around the deadline requirements for mail-in voting. More specifically, when a mail-in ballot must be mailed to the voter by and the deadline for its return. Like everything in 2020, it has also become a politically partisan issue. The presupposition is that a longer extended deadline, allowing more votes to be counted, will benefit Democratic voters because nonvoters, i.e., those that stay home, are much more Democratic than regular voters.
The latest iteration of this issue arose in the battleground state of Pennsylvania, where the United States Supreme Court’s conservative justices were unable to muster the required five justices to stay, i.e., stop, the Pennsylvania Supreme Court’s injunction that required election officials to count mail-in ballots received within three days after Election Day, November 3, even those lacking a postmark or bearing an illegible postmark. The majority for the Pennsylvania Supreme Court iterated a presumption that such ballots “will be presumed to have been mailed by Election Day unless a preponderance of the evidence demonstrates that it was mailed after Election Day” citing the coronavirus pandemic and the delay in the USPS.
The dissent stated it would have granted the “stay to preserve the public confidence in the integrity of the upcoming election.” The dissent cited the Wisconsin case, Republican Nat’l Comm. v. Democratic Nat’l Comm., pointing out that the United States Supreme Court stopped the Wisconsin Supreme Court’s judgment that held that “[e]xtending the day by which ballots may be cast by voters after the scheduled election day fundamentally alters the nature of the election.” The dissent also appeared to agree with the Republican Party of Pennsylvania Intervenors that argued “virtually no evidence exists to overcome such a presumption [that ballots were mailed by Election Day]” and “the Court’s presumption opens the door to illegality and untimely cast or mailed ballots being counted in, and tainting the results of, the imminent general election . . .”
This decision reiterates the degree of partisanship on the Supreme Court as well as highlighting the utmost degree of importance that Judge Amy Coney Barrett’s successful confirmation could have on the almost inevitable post-election legal disputes. Unless there is a red or blue wave on November 3, enough of a landslide in votes that mail-in ballots would be more-or-less irrelevant, there is almost no possibility that we will know who our President is in the coming days after the election. In the event that this scenario plays out, will each side accept an election decided by the Supreme Court?
2020 – Expect Anything, Be Surprised by Nothing
As the Supreme Court continues to decline to review COVID-19-related cases that trickle in, the question becomes to what extent should the Court step in before the election? Should the Court avoid destabilizing the electoral process at the last minute, or is the failure to provide clarification doing exactly that? Will the 2020 Election be a repeat of the 2000 Election and Bush v. Gore? Or is this merely a political question that is not justiciable, i.e., should the Supreme Court just wait and see what happens like the rest of the United States? These are all questions that ostensibly will be revealed in time. But by then, will it be too late?
If the Supreme Court does not offer some guidance to the myriad of unprecedented COVID-19 related legal issues and instead hopes that the political process will sort them out itself, we could find ourselves in a state of purgatory in the weeks following the November election. If the election results are disputed due to a legal issue that must be decided by the Supreme Court, similarly to the Bush v. Gore situation in 2000, there is a high probability that the losing side will refuse to accept the validity of the winner. With the addition of conservative Justice Barrett to the Court, there is now a 6-3 conservative majority, meaning the decision could likely be in President Trump’s favor. The underlying question seems to be: to which does one owe a greater allegiance, to one’s political party or to their creed as a citizen of the United States of America?
United We Stand, Divided We Fall
Though 2020 has been plagued by fear, anxiety, and animosity, I can offer but one bit of advice: tend to the garden you can touch. No one person or political party can alleviate the qualms and misfortunes that we all are experiencing. All you can do is be the change you’d like to see. Call your grandparents, go for a walk, hold the door for a stranger, and appreciate the beauty of this adventure we call life. Our troubles can be as infinite or as infinitesimal as we make them, but there is always a silver lining if one but searches.
So, while chants of “not my President” still echo across the nation, our political polity fragile and strained, and the wound from the death of a RBG still fresh, we should heed the warning of Lincoln: “At what point then is the approach of danger to be expected? I answer, if it ever to reach us, it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.”