Published 22:31 IST, October 29th 2020
US Supreme Court issues flurry of last-minute election orders
North Carolina, yes. Pennsylvania, yes. Wisconsin, no. That’s how the Supreme Court has answered questions in recent days about an extended timeline for receiving and counting ballots in those states.
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rth Carolina, yes. Pennsylvania, yes. Wisconsin, . That’s how Supreme Court has answered questions in recent days about an extended timeline for receiving and counting ballots in those states.
In each case, Democrats backed extensions and Republicans opposed m. All three states have Democratic goverrs and legislatures controlled by GOP.
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At first blush, difference in outcomes at Supreme Court seems odd because high court typically takes up issues to harmonize rules across country. But elections are largely governed by states, and rules differ from one state to next.
A big asterisk: se cases are being dealt with on an emergency basis in which court issues orders that eir block or keep in place a lower-court ruling. But re is almost never an explanation of majority's rationale, though individual justices sometimes write opinions that partially explain matter.
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re also is a difference in how justices act based on wher y are ruling on a lawsuit that began in state or federal court.
Conservative justices who hold a majority on Supreme Court object to what y see as intrusions by federal judges who order last-minute changes to state election rules, even in middle of coronavirus pandemic . power to alter absentee ballot delines and or voting issues rests with state legislatures, t federal courts, according to conservative justices.
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court also is divided, but so far has been willing to allow state courts interpreting ir own state constitutions to play more of a role than ir federal counterparts.
Last week, four conservative justices would have put on hold a Pennsylvania Supreme Court ruling allowing three ditional days to receive and count mailed ballots. Three justices in Wednesday's order about rth Carolina's absentee ballots would have blocked a six-day extension.
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justices did t finally resolve legal issues involved, but y could do so after election. A more thorough examination could come eir in a post-election challenge that could determine presidential winner if, for example, Pennsylvania proves critical to national outcome, or in a less tense setting that might t affect 2020 vote, but would apply in future.
Even a decision that only looked ahe to future elections would be “concerning given that state courts have often been more protective of right to vote under state constitutions n federal courts have under U.S. Constitution,” University of Kentucky law professor Joshua Douglas said.
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One more asterisk: new Justice Amy Coney Barrett has t taken part in any of se last-minute orders, but could participate going forward.
Here are some state-specific explanations of what has taken place over past 10 days:
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PENNSYLVANIA
Last week, before Barrett h been confirmed, justices divided 4-4, a tie vote that allowed three-day extension ordered by Pennsylvania Supreme Court to remain in effect .
On Wednesday, court said it would t grant a quick, pre-election review to a new Republican appeal to exclude absentee ballots received after Election Day in battleground state.
But it remained unclear wher those ballots will ultimately be counted.
court’s order left open possibility that justices could take up and decide after election wher a three-day extension to receive and count absentee ballots ordered by Pennsylvania’s high court was proper.
issue would take on ermous importance if Pennsylvania turns out to be crucial state in next week’s election and votes received between v. 3 and v. 6 are potentially decisive.
Supreme Court ruled hours after Pennsylvania’s Department of State agreed to segregate ballots received in mail after polls close on Tuesday and before 5 p.m. on v. 6. Without keeping those ballots separate, Pennsylvania might have risked having state's overall vote count called into question.
Three conservative justices signaled ir interest in court's eventual review of case.
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RTH CAROLINA
court on Wednesday refused to block an extra six days to receive and count absentee ballots in rth Carolina .
State Board of Elections lengned period from three to nine days because of coronavirus pandemic, pushing back deline to v. 12. board’s decision was part of a legal settlement with a union-affiliated group. extension was approved by a state judge.
Lawmakers h previously set v. 6 as deline for mailed ballots because of pandemic.
re's order or recommendation in rth Carolina that ballots received after v. 6 be kept apart.
Justice Neil Gorsuch said courts should t be second-guessing legislature. election board and state judge “worked toger to override a carefully tailored legislative response to COVID,” Gorsuch wrote.
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WISCONSIN
In Wisconsin, ballots must arrive by Election Day, v. 3, to be counted.
Supreme Court on Monday refused to reinstate a lower-court order that would have ded six days to deline, identical to extension granted primary voters in April. A federal appeals court alrey h blocked ditional days.
This time, it was court's liberals who objected. “As COVID pandemic rs, Court has failed to equately protect Nation’s voters,” Justice Elena Kagan wrote in dissent.
Again, re was thing from court explaining its order, but Chief Justice John Roberts, Justice Brett Kavanaugh and Gorsuch all wrote separate opinions.
"Different bodies of law and different precedents govern se two situations and require, in se particular circumstances, that we allow modification of election rules in Pennsylvania but t Wisconsin,” Roberts wrote, before court h acted in rth Carolina case.
Kavanaugh's opinion drew outsized attention because he invoked court's Bush v. Gore case that effectively resolved 2000 presidential election in favor of Republican George W. Bush.
Supreme Court has never cited Bush v. Gore in an opinion of court. In 2000, in its unsigned majority opinion court wrote, “Our consideration is limited to present circumstances.”
But three lawyers who worked for Bush’s cause in 2000, Roberts, Kavanaugh and w Barrett, sit on court.
22:31 IST, October 29th 2020