The U.S. Supreme Court may wait until after Election Day to disenfranchisement voters, but the 8th Circuit Court thought doing it right now was just dandy. Today, just four days before Election Day, two federal judges, George W. Bush’s and DDT’s appointees, changed the date when ballots must be delivered in Minnesota, moving the goalpost up by seven days—a full week. The extension was made almost three months ago because of COVID-19, and it was the understanding of all the voters. The opinion stated, “There is no pandemic exception to the Constitution.” Two of three judges on a panel told voters to make different plans if they haven’t already mailed their absentee ballots. Although the ruling merely ordered the separation of ballots received after Election Day, the intent to remove them is clear. The disenfranchisement comes from deliberate delays in the USPS to suppress the votes. Tim Walz, the state’s governor, said, “It speaks volumes when your goal is to make it more difficult for people to vote.”
You have to give Republicans persistence. After failing to definitely reduce extension time for returning North Carolina ballots yesterday, they went back to the Supreme Court. The majority again denied the GOP appeal with Clarence Thomas, Neil Gorsuch, and Samuel Alito again dissenting. The 1.4 million voters requesting absentee ballots in the state are seven times more than in 2016, and Democrats are twice as likely as to vote by mail as Republicans.
Justice Brett Kavanaugh had to correct one part of his error-riddled opinion denying Wisconsin its extension time for returning ballots after a Vermont official complained. Kavanaugh had used Vermont to show how “ordinary election rules” were not changed in spite of COVID-19. Earlier in the year, however, Vermont had authorized mailing ballots to all registered voters and processing them before Election Day—just like all the other successful vote-by-mail states do. After Vermont Secretary of State’s office formally requested a correction, Kavanaugh’s new opinion was changed to “ordinary election-deadline rules.” Although a minor change, it shows the sloppiness of Kavanaugh’s Supreme Court statements. In Vermont, mail-in votes are still due by Election Day if dropped off at polling places, but ballots are mailed out at least 45 days before Election Day—plenty of time for the two to three weeks needed for voters to receive and return them even with the GOP-orchestrated USPS delay.
Slate listed other Kavanaugh mistakes, but the most horrifying may be Kavanaugh’s belief that states formally declare elections on the night of the election deadline. He maintained any ballots after that time will “flip the results of an election,” a completely erroneous perspective with no legal standing. Justice Elena Kagan had to remind him, “There are no results to ‘flip’ until all valid votes are counted.” No states “definitively announce the results” on election night, as Kavanaugh declared, no matter how impatient people might be.
In addition, Kavanaugh was wrong when he stated the Supreme Court “has repeatedly emphasized that federal courts ordinarily should not alter state election laws in the period close to an election.” No majority opinion has ever made that rule. Kavanaugh also quoted, out of context, an article New York University law professor Richard Pildes to support his personal opinion about late-arriving ballots causing crisis, an article supporting time extensions for states’ receiving ballots in opposition to Kavanaugh’s position. He also violated his rule that only legislatures have constitutional authority to make voting rules by preserving Alabama’s ban on curbside voting never addressed by the legislature.
No other justice signed on to Kavanaugh’s misguided statements.
Voters at Texas polls had to wear masks for under one day after a three-judge panel of the 5th Circuit Court blocked an order for mask-wearing at the polls. A lower court found the governor’s not requiring masks at the polls violated the federal Voting Rights Act’s disallowance of discriminatory voting practices based on race. The appeals court said the lower court would have jurisdiction to order changes, probably after the election and people already contracted the virus.
Missouri may have the most restrictive laws in the nation for absentee voting. Justification for mail-in voting is narrow, ballots must be mailed and not dropped off (risking not being counted because of GOP-caused postal delays), be received by Election Day, and have a notary authorize the signature. The last item creates a poll tax with the cost of hiring a notary.
Three notable law professors wrote an opinion piece asking federal courts to stay out of state court rulings protecting voting rights under state law. DDT’s judges refuse the federalist argument to honor only decisions from state legislatures and refuse state courts to interpret state law. The conservative “originalists” hope that DDT’s newest justice will give them a comfortable majority to disenfranchise voters across the country although 56 percent of people in the polls want Amy Coney Barrett to recuse herself from any cases connected to DDT’s reelection attempt. Calling Bush v. Gore a disgrace, the authors bluntly state:
“Federal court have no business interfering in state-law matters.”
The Supreme Court rationale moving George W. Bush into the White House was already rejected by Arizona Legislature v. Arizona Redistricting Commission (2015): “legislature” in Article I of the U.S. Constitution means the lawmaking process set up by a state’s constitution. Justice Ruth Bader Ginsburg said that nothing in the federal Constitution “instructs, nor has this court ever held, that a state legislature” may regulate “federal elections in defiance of the provisions of the state’s constitution.” This rule also applies to Article II which empowers each state “legislature” to regulate the manner of picking presidential electors but does not empower a state “legislature” to ignore the state constitution creating that legislature, or the state supreme court that authoritatively interprets that state constitution.
A state court interpreting a state election statute to align it with a state constitution is in alignment with the authorization of the federal constitution. States use uniform rules for both state and federal elections; states should not be forced to develop separate rules because of a Supreme Court decision. State legislatures also deputize state courts to oversee elections to conform with state constitutions. One of the authors, Neal Kumar Katyal, is also a former acting U.S. solicitor general.
Dictator Donald Trump (DDT) began his strategy of voter disenfranchisement through disinformation during the 2016 election. Eric Prince, brother of Education Secretary Betsy DeVos, explained the project, “We merely need to dampen turn out [sic]. … A shift of a few points in the right places can swing this election.” And it did. All it needed was the standard DDT barrage of lies, over-the-edge rhetoric, and disinformation, called “flood the zone with shit,” by DDT’s former adviser Steve Bannon—this year a heavy use of QAnon conspiracy theories. Rolling Stone writer Andy Kroll used “internal documents, tax records, and interviews about [Roger] Stone and Prince’s efforts [to] illustrate how a lax campaign-finance system and an overtly racist voter-suppression effort created the perfect opportunity to follow Bannon’s directive.”
For donations, DDT’s campaign leaders created a front, the Committee for American Sovereignty Education Fund and Project Clintonson, to develop the false scenario of Bill Clinton’s Black son, hoping to smear DDT’s opponent, Hillary Clinton. The Committee used a UPS store for its address, failed to incorporate with California listed as its legal domicile, had no employees or board members, and declared no “direct or indirect political campaign activities” despite its objective to depress the Black vote. DDT bragged to a group of prominent Blacks he won the election because fewer Blacks voted in the 2016 election.
Nine Supreme Court election rulings between April and October 26 were unsigned orders with no explanations, no full briefings, and no oral arguments. Some of these decisions concerned absentee voting during the pandemic in three states and the disenfranchisement of hundreds of thousands of people with felony convictions in Florida. Nicholas Stephanopoulos, a Harvard law professor, compared the decisions to a “shadow docket”:
“If courts don’t have to defend their decisions, then they’re just acts of will, of power. They’re not even pretending to be legal decisions.”
Judge Frank H. Easterbrook wrote in 2000 that explaining is the difference between judges and politicians:
“The political branches of government claim legitimacy by election, judges by reason. Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat, which requires compelling justification.”
Stephen I. Vladeck, a law professor at the University of Texas, attributed the growth of the shadow docket to DDT’s administration which filed 36 “emergency” applications in three and a half years. Administrations of George W. Bush and President Obama filed only eight of these applications in 16 years.
Three reasons for giving reasons from Rick Hasen:
“Reasons will help lower courts use the right standards in election cases, rather than having to try to read tea leaves from unexplained court orders…
“[Reasons] bolster the legitimacy of the court in the eyes of the public, something especially important in controversial cases, such as election cases…
“[Reasons] may also discipline justices into deciding similar cases alike, regardless of the identity of the parties.”
DDT’s judges are suppressing votes, but he needs every vote he can get to win swing states, all of them hot spots for COVID-19. Pennsylvania, with 20 Electoral College votes, has a 50-percent increase in the past week. The highly infectious zones roll from northern Mississippi to the Canadian border. New U.S. cases in the last 24 hours, 91,530, and 1,047 more deaths that DDT doesn’t find concerning.