SCOTUS Election Law Kremlinology -- Or How Brett Kavanaugh Might Yet Save the Republic

 by Michael C. Dorf

Within the last week, the Supreme Court has ruled on two election-related stay applications from Pennsylvania, one from Alabama, one from Wisconsin, and one from North Carolina. In three of the five rulings, the position favored by Democrats prevailed, with the result that, for now, the deadline for counting absentee ballots is modestly extended in Pennsylvania and North Carolina but not Wisconsin. The Alabama case (in which Democrats lost) involved curbside voting, not deadlines.

Superficially that pattern is good news for Democrats. So far as the Presidential race is concerned, counting every possible vote in Wisconsin is less crucial than in Pennsylvania and North Carolina, given that Joe Biden has a wider polling lead in Wisconsin than in Pennsylvania or North Carolina. Meanwhile, Biden is not going to win Alabama under any circumstances, and while Doug Jones cannot afford to lose any votes, he's likely to lose his Senate seat regardless.

But even the good part of the good news is not so good for Democrats. Let's start with Pennsylvania. Last week's Democratic "victory" in the Pennsylvania case was a 4-4 split in the Supreme Court, leaving the Pennsylvania Supreme Court opinion standing. Justice Barrett did not participate in the follow-up Pennsylvania case decided today, but not because she recused herself due to the appearance of impropriety of casting a vote in favor of the President and party that just catapulted her to the Supreme Court in record time; she might still recuse in election cases, but as of now it appears only that she didn't participate because she didn't have time to get up to speed. Meanwhile, in a statement in today's Pennsylvania case, Justice Alito, joined by Justices Thomas and Gorsuch, provided Pennsylvania Republicans with a roadmap for getting back to the Supreme Court after the election, by segregating the mailed-in ballots that arrive in the 69 extra hours the state court allotted.

But wait! That's only three conservative Justices. Where was Justice Kavanaugh in the second iteration of the Pennsylvania case? I'll address that question momentarily, along with the parallel mystery of where he might have been in the North Carolina case, where he also was not recorded as joining the three most conservative justices. And unlike the Pennsylvania case, in the three North Carolina case dissenters (Thomas, Alito, and Gorsuch) did not suggest they would rule for the Republicans after the election. Has Justice Kavanaugh--who wrote an almost Trumpian concurrence in the Wisconsin case just two days ago--suddenly gone soft?

Let's read the tea leaves.

The Democratic appointees are easy to describe in these cases. They're voting for the Democratic constituencies who want expanded ballot access. That could be partisanship or, more charitably, it could be ideology: Justices Breyer, Sotomayor, and Kagan value the right to vote more than sticklerism, especially during a pandemic and when voters send in their ballots on time but have them delayed by a Post Office experiencing delays that might be the result of deliberate sabotage but are in any event not the fault of voters.

Chief Justice Roberts has been remarkably consistent in both pandemic cases generally and pandemic-influenced election cases in particular. He votes to invalidate any and all interventions by federal judges but defers to state and local officials, including state judges. I'm not fully persuaded that the Chief has settled on the right principle, but I give him credit for seeking guidance in a principle that is not strictly partisan.

Justices Thomas, Alito, and Gorsuch are the mirror image of the Democratic appointees. They are what I described in April--in the context of their intervention in the Wisconsin primary case--as "petty sticklers." They consistently vote in favor of the enforcement of technical rules, voting rights be damned. In the most recent cases, the nominal justification for their approach is that Article II vests the power to designate the manner of presidential elector selection in state legislatures. Here's how Justice Gorsuch, joined by Justice Kavanaugh, put the claim in Monday's Wisconsin case: "The Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules." That tendentious view echoes the position staked out by three Justices concurring in Bush v. Gore that somehow what a legislature does can be completely isolated from the state's broader approach to making, applying, and interpreting its law. The claim is especially galling when the relevant and supposedly politically accountable state legislatures are those of Wisconsin and North Carolina, which hold the power they do because of partisan gerrymandering. Still, deference to state legislatures is at least nominally a principle distinct from the decision rule "Republicans win."

But wait again. Given that Justice Kavanaugh joined Justice Gorsuch in the Wisconsin case on Monday and voted with the other most conservative Justices in the first round in the Pennsylvania case, why did he not publicly join them in round 2 of the Pennsylvania case or the North Carolina case today? We don't know, but I'll very tentatively float a hypothesis.

In just about all of the election cases and especially in the Wisconsin decision on Monday, Justice Kavanaugh has been insistent on the Purcell principle--that courts oughtn't to change the rules of an election late in the game. Maybe that really is his guiding principle. If so, it would make sense for him to refuse to grant Republicans relief in the North Carolina case, because there the Republicans sought judicial relief, arguing that North Carolina localities were acting impermissibly by providing extra voting opportunities beyond what the state legislature provided. For the SCOTUS to grant relief to the North Carolina GOP plaintiffs would have violated the Purcell principle that Justice Kavanaugh seems to value even more highly than the state-legislatures-decide principle.

In his Wisconsin solo concurrence on Monday, Justice Kavanaugh proclaimed that strictly following Purcell promotes "confidence in the fairness of the election." He went further to state that the Purcell "principle also discourages last-minute litigation and instead encourages litigants to bring any substantial challenges to election rules ahead of time, in the ordinary litigation process."

Which brings us to Pennsylvania. If the eve of the election is too late for a federal court to intervene because of what such intervention will do to public confidence in an election's fairness, then litigation after the votes have been cast and the effect on the outcome determinable is a positively terrible time to change the rules. We thus have the intriguing possibility that Justice Kavanaugh didn't join with Justices Thomas, Alito, and Gorsuch in round 2 of the Pennsylvania case because he doesn't think that further judicial intervention--especially judicial intervention after the state has all the ballots in hand and knows their tallies--would be permissible.

Put differently, maybe--and it is a gigantic maybe based on mere hints, I readily acknowledge, but just maybe--there are five votes on the Supreme Court to deny any effort by the Pennsylvania GOP to invalidate ballots received in those extra 69 hours: Chief Justice Roberts and Justices Breyer, Sotomayor, Kagan, and Kavanaugh. And if there were five such votes, the pressure would be off of Barrett, who could boost her credibility as an independent jurist by casting the sixth and decisive vote to give Biden a victory. Could that be the surprise ending to the astounding saga of 2020?

Here's hoping that Biden wins Pennsylvania (and North Carolina, Wisconsin, Michigan, Florida, Arizona, etc.) by a sufficiently large margin that my hypothesis is not tested.