Opinion | The Supreme Court’s “Breathtakingly Radical” New Approach to Election Law

In several cases, and often without any explanation, the Supreme Court gave an affirmative to make the vote more difficult. The first case was in Wisconsin in April, in the immediate aftermath of the pandemic. A lower court had extended the deadline for returning postal ballot papers in the presidential primary by six days. But the night before the election, the Supreme Court blocked this extension because of a dwindling objection from Judge Ruth Bader Ginsburg – her last written statement – and gave voters only hours to receive and return their ballots. The result: Thousands of citizens could not return their ballots in time and their votes were not counted.

Likewise, in early October in South Carolina, the South Carolina court reintroduced the requirement to testify for absentee ballots after the voting began and weeks after the voting instructions were printed. The court exempted voters whose ballots were cast within two days of its decision, at least without the signature of a witness 2.509 Ballot papers arrived after that date and were disqualified. In Alabama, the court stepped in two weeks before polling day to reintroduce witness identification requirements for postal ballot papers and a roadside voting ban.

By the time these decisions were made, federal courts across the country had generally responded to the pandemic expand Access to voting, application of well-established legal doctrines to assess the burden of voting rights under the Constitution. Above all, their decisions made it possible for more voters to use postal voting and to have safe voting and voting locations. Electoral officials adapted their systems accordingly, and voters applied for and received ballots according to the new procedures.

After the South Carolina Supreme Court ruled, the appeals courts followed its lead and blocked more than a dozen voter-friendly decisions and settlements in just a few weeks. In one egregious case just four days before election day, a federal appeals court did stopped An agreement that allows Minnesota voters to send their ballots back by election day. At this point there were more than half a million ballots pending, all of which included instructions with the previous deadline.

These decisions have likely disenfranchised tens of thousands of Americans this year. disproportionately People with color. However, their greatest harm is not limited to this choice. Although the Supreme Court failed to provide a rationale for its rulings, individual judges formulated two principles that guided their votes, and the way the Court applied those principles this election season sets dangerous precedents for the future.

First, there is what is known as Purcell Principle that states that federal courts should not make changes to voting rules near an election. The supposed purpose of this judge-made doctrine is to prevent confusion and chaos by requiring last-minute changes in electoral practice that can reduce voter eligibility or create administrative problems. In many cases, the Supreme Court itself caused confusion and administrative problems in the run-up to this election by reversing lower federal voting decisions already implemented by electoral officials, and the county courts followed suit. (This seems to suggest that while the Supreme Court believes this rule applies to lower courts, it is not a limitation on its own decisions.)

What’s more that Purcell The principle has never been used as a blunt tool to block all voting protections near an election, regardless of its impact, as the Supreme Court appeared to be doing this year. Widespread application of this precedent could make it impossible to question electoral barriers that were imposed even at the last minute, including barriers that were specifically erected to frustrate certain voters. This is not theoretical. That’s exactly what happened in Texas when a federal appeals court did the Purcell Principle of upholding the Executive Ordinance of Greg Abbott, governor of Texas, dated October 1, which severely restricted the number of ballot dispensing points so that voters in more populous counties could be targeted after a federal district court ruled against it.

Second, and even more dangerous, five judges in the court have signed positions advocating a brand new legal theory: the Constitution gives lawmakers virtually unhindered powers to set voting rules for federal elections, no matter how arbitrary or inappropriate. This previously discredited theory, first formulated by three judges in one of the Florida presidential recount cases, could prevent most laws against voters – from arbitrary voting restrictions to onerous registration requirements – from reviewing the constitution by federal courts . In addition, the Court of Justice might be ready to prevent this from happening Status Courts from reviewing the laws of their own state for compliance with the state protection of the constitution. Indeed, that was the logic Judges Samuel Alito, Neil Gorsuch, and Clarence Thomas wanted to move to remove the Pennsylvania Supreme Court decision extending the deadline for receiving postal votes that year. This time they were outvoted, but that logic could also be applied to prevent state and local election officials from expanding voter access beyond legislative mandates – like many to ensure the health and safety of voters this year.

These theories are breathtakingly radical, and if they take root they will seriously undermine American voting rights in the future. But here’s the good news: when it comes to voting rights, the Supreme Court doesn’t necessarily get the last word. Congress can take the lead.

The same constitutional provision that the Supreme Court seeks to strengthen the hand of state lawmakers to restrict voting rights also gives Congress the power “at any time” to override state law and establish its own rules for federal elections. When Justice Gorsuch, along with Justice Kavanaugh, put it in his accordance in a recent case: “If government rules need to be revised, Congress can change them.” Chief Justice John Roberts, Write For the conservative majority in the court, a similar point was raised two years ago in a redistribution case.

The House has already got down to it and passed two voting rights laws last year. H.R.1 (For the People Act) would create a basic federal basis for voting – from automatic and online voter registration to accessible early and email voting. Every voter should have a clear, fair route to the ballot box. As the pandemic has shown, this is not the case for many Americans. H. R. 4 (The Voting Rights Restoration Act) would restore the critical protection against racial discrimination in voting that the Supreme Court obstructed in a 2013 case. Had these safeguards been put in place this year, they would have prevented important states from closing polling stations in such a way that, for example, color voters would be disadvantaged. With a few additions, these two bills can severely limit the ability of partisan actors, including state legislators, to restrict the right to vote.

H. R. 1 would strengthen democracy in other ways. It would also curtail partisan gerrymandering, where the Supreme Court has given up responsibility and passed the ball on to Congress. Without legal restrictions, politicians have become increasingly brazen when it comes to manipulating district boundaries to secure their power and isolate themselves from accountability to voters. Under H.R.1, gerrymandering would be forbidden by law, and the boundaries would be drawn by independent commissions rather than selfish partisans. And H.R. 1 also provides the best answer to the Supreme Court’s decades-long attack on campaign finance laws, including the much maligned ones Citizens United v FEC (what Justice Ginsburg called the worst decision of her term). Have the judgments of the court shifted dramatically the balance of power in federal elections in favor of the largest campaign donors and away from the everyday Americans who make small donations. H.R.1 would push back the equilibrium through a transformation small donor matching system, amongst other things.

House spokeswoman Nancy Pelosi has promised that H.R.1 will be the first task in the next congress. Republicans, whether they control the Senate or not, should reconsider their opposition. The vast majority of the provisions of H.R.1 are broadly supported by the voters and electoral officials of both parties.

The pandemic forced millions of Americans to look at the way our electoral systems work with new eyes and be willing to change previous practices to participate in our democracy. They were fearless and voted in record numbers. But they are also aware of new obstacles to voting – obstacles that the courts should have protected against – and are unlikely to tolerate them in the future.

The best way to remedy the Supreme Court’s betrayal of its responsibility for upholding American democracy is to have Congress do it instead. Even the Supreme Court agrees.

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