And so it begins.
As if perfectly timed to coincide with one another, on Monday night the already archconservative Supreme Court told Wisconsin voters that it doesn’t care about getting every ballot counted at almost the exact same time the Senate confirmed a sixth right-wing justice to the Court. This double whammy is the perfect way to usher in this new era of the Supreme Court, one that will be characterized by trampling on democracy and people’s rights … unless you’re a gun owner or a Christian who wants to ignore anti-discrimination laws (or, better yet, a Christian who wants to ignore gun restrictions!).
With Amy Coney Barrett now Justice Barrett, there are six reliable conservative votes on the court. Even if Chief Justice John Roberts moderates his views more than he has for the past decade and a half that he’s been on the court (when he hasn’t moderated that much at all), his vote is now irrelevant. The other five conservatives will be able to have their way with American jurisprudence for decades to come.
Monday night’s decision in the Wisconsin case is emblematic of what we should expect from these justices, both generally and specifically in the coming weeks. The case arose because Wisconsin Democratic voters, suffering through one of the worst Covid-19 outbreaks in the country right now, sought extra time to have their mail-in ballots count for the election. Importantly, they were not asking to be able to mail their ballots after Election Day. Rather, they wanted to have ballots mailed on Election Day count even if they were received after that day. Many states already have that rule, so the Wisconsin Democrats asked a federal judge to give them this extra time to deal with the pandemic in their state. The federal judge who initially heard the case agreed and gave all Wisconsin voters a six-day buffer — as long as they were postmarked by Election Day, ballots would count if they were received up to six days later.
However, the intermediate federal appellate court that covers Wisconsin reversed the trial court’s decision. The voters then appealed to the Supreme Court, asking it to set aside the appeals court decision so that their votes can count next week. Monday night, just before Justice Barrett joined the court, the justices voted 5-3 to keep the appeals court decision and prevent the late-received ballots from being counted.
The lineup was predictable (get used to me and other Supreme Court reporters and observers repeating that phrase). The five conservatives voted against the Wisconsin voters, and the three liberals voted to lift the stay to allow their votes to count.
Because this was a request for emergency intervention, the court didn’t issue an opinion with its ruling. Instead, Chief Justice Roberts explained in his own short opinion that this case was different from the Pennsylvania case a week ago because the Wisconsin case involved a federal court rewriting state election law, whereas the Pennsylvania case involved a state court doing so. To him, that alleviates any problems in the Pennsylvania case (which I’ll get back to in a bit).
Justice Neil Gorsuch wrote an opinion — that can be paraphrased as “Yeah, Covid sucks, but whatcha gonna do?!” — but it was Justice Brett Kavanaugh’s separate opinion that stole the day. His lengthy screed laid bare what a far-right Supreme Court is going to do about voting rights — use right-wing talking points, faulty legal reasoning, and incorrect basic facts to rule against democracy. He justified his rant against counting people’s votes by claiming that there is a strong interest in knowing final results the night of Election Day (something that is nowhere in the Constitution but all over the president’s Twitter feed). He then confused — multiple times — the idea of receiving the ballots after Election Day and sending them after Election Day. And he just was flat-out wrong about basic facts, like asserting that Vermont has actually changed its entire voting system because of the coronavirus.
This kind of sloppy analysis is the kind of thing that justices used to cover for one another, but no one on the court cared about Kavanaugh making a legal fool of himself. What was more important, apparently, was that Kavanaugh scored several Fox News points by doing what this court loves to do: telling voters to fuck off.
This is where we come back to Pennsylvania, while also adding in North Carolina (and maybe other states, too). Both Pennsylvania and North Carolina have extended — through a court decision in the former and an administrative settlement in the latter — the time that ballots can be received and still count. In both states, the ballots have to be mailed by Election Day (got that Brett?), but they can count if received up to several days later (three in Pennsylvania and nine in North Carolina).
But as I wrote last week: Anyone in those states should get their ballots mailed (or better yet, dropped off) now. Because these cases are being appealed to the Supreme Court. And with Justice Barrett now on the court to join her conservative colleagues, voters in those states better be ready for the court to pull the rug out of the system they are expecting … even though Election Day is less than a week away.
Yes, there’s a good reliance argument voters can make here given how close Election Day is. But do we really think this set of justices, who have shown again and again that they just don’t care about voters, are going to decide to help voters now?
If you think the answer to that question is yes, you’re not reading the very clear writing on the wall. This new Supreme Court is hellbent on taking a wrecking ball to democracy, and it’s not afraid to wield it over and over and over again.