On the very day that the U.S. Senate confirmed a new Supreme Court Justice nominated by a president who explicitly hopes she will help decidean election outcome he has for months signaled he might contest, the first two justices he placed on the Court offered an alarming glimpse into the activist role they believe they should play in disputes over state election laws.
The actual holding in the Supreme Court’s order in Democratic National Committee v. Wisconsin State Legislature, as explained by Chief Justice John Roberts, was entirely predictable and not terribly controversial: relying on the same principle it applied in earlier cases involving the Wisconsin primary and general election rules in Alabama and South Carolina, the Court swept aside a district judge’s ruling liberalizing the deadline for mail-ballot receipt on grounds that federal courts should not intervene in state election-law disputes too close to the elections they govern, particularly when second-guessing state legislatures and state courts. Roberts’s terse opinion in the Wisconsin case explicitly distinguished it from a recent Pennsylvania case in which the Court declined (on a 4-4 tie vote) to overturn a State Supreme Court decision that similarly delayed mail-ballot receipt deadlines on grounds of slow mail delivery and COVID-19-prompted fears of voting in person.
But Justices Neil Gorsuch and Brett Kavanaugh, who indicated they would have overruled the state court in the Pennsylvania case, have now in separate concurrences made their position on state election disputes reasonably clear in a way that should alarm anyone worried about a contested election in this and any other presidential contest. Both justices embrace an “originalist” interpretation of the Constitution’s endowment of state legislatures with exclusive powers in presidential elections, defending SCOTUS’s right to smack down state as well as federal courts who interfere with it.
We don’t really know if Gorsuch and Kavanaugh are consciously laying the groundwork to help Trump contest a loss to Joe Biden any more than we know whether Trump’s threats to steal the election are bluster or a real warning. But in my own writing about the “red mirage” scenario in which Trump would claim victory on Election Night based on heavy Republican in-person voting and then fight like hell to stop mail-in ballots from being counted, it was never completely clear to me how Trump could convince the world his claims of mail-in ballot fraud were credible, or how he could turn a muddied result into victory. Now we have one Supreme Court justice identifying with Trump’s alleged horror of post-Election Night uncertainty, and two Supreme Court justices pointing the way to a state legislative hijacking of the results. Both owe their lifetime appointments to the incumbent president. Their new colleague has refused to recuse herself from 2020 election disputes.