The coronavirus has left many people wary of going to the polls on election day, resulting in an upswing in the number of requests for mail-in ballots. This alone has turned the election into what is best called a pandemic-infused campaign – and one that has created a an outbreak in lawsuits.
It seems that everyone, from voters, church worshipers, prisoners and others are challenging the public health policies in the various states enacted during the COVID-19 pandemic, and the U.S. Supreme Court has been forced to become an arbiter, something the court would rather leave alone sometimes.
According to USA Today, more that 300 lawsuits have been filed in almost every state, most of them involving problems associated with COVID-19 or the expansion of mail-in balloting.
“I don’t think the Supreme Court wants this fight,” said Justin Levitt, a professor at Loyola Law School in Los Angeles who specializes in voting rights. “There’s lots of chaos in this election. I don’t think the court wants anything to do with that.”
Supreme Court Decisions
The lawsuits started in April, when SCOTUS ruled 5-4 along ideological lines that absentee voting in Wisconsin could not be extended past the primary election date. The court’s decision forced those voters who had not received their ballots to go to the polls during the early days of the pandemic, or lose their vote. The four Liberal Justices cast dissenting votes.
“The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic,” Associate Justice Ruth Bader Ginsburg wrote. Under the court’s decision, “either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own.”
Since April, the Surpreme Court has issued “stop-gap” measures in a number of cases, ranging from turning down a California church’s challenge in May to the state’s reopening guidelines, to felons’ voting rights in Florida and mail ballots for senior citizens in Texas.
Looking at all the cases so far, the Supreme Court has been unanimous in some decisions, while others were decided by 5-4 votes, with conservatives and liberals coming out on top in different cases. Only Chief Justice John Roberts has yet to register a dissent.
SCOTUS and voting rules and procedures
This is not the first time the Supreme Court has stepped in to decide balloting or election results. In 2000, its 5-4 ruling in Bush v. Gore stopped Florida’s recount and handed the presidency to George W. Bush by a margin of 537 votes.
Florida state election law required a mandatory statewide machine recount. By November 10, the machine recount was complete, and Bush’s lead stood at 327 votes out of six million cast. To make a long story short – by late November, Bush was declared the winner, but the legal challenges did not go away.
Finally, the Florida Supreme Court decided (4–3) to order a statewide manual recount of about 45,000 undervotes—ballots that machines recorded as not clearly expressing a presidential vote. That was when the Bush campaign went to SCOTUS, asking for a delay in the recounts until the court could hear the case.
However – and there is always a “however” – Scotus issued a delay on December 9. But three days later, the court concluded (7–2) that a fair statewide recount could not be performed in time to meet the December 18 deadline for certifying the state’s electors, and a very controversial ruling was issued.
The Supreme Court issued a 5–4 decision to reverse the Florida Supreme Court’s recount order, effectively awarding the presidency to Bush.
Ramifications for the 2020 election
If a major case involving an election dispute reaches the Supreme Court this year – it will result in a tie-vote, unless President Donald Trump can get his nominee voted onto the bench, there by guaranteeing a conservative ruling.
The main election problem churning in the background is mail-in voting in “battleground states” – Michigan, Florida, and Pennsylvania. The state creating most of the mail-in balloting problems right now is Pennsylvania, although it is possible other states could be having problems of their own.
It was learned earlier this week that a “small number of mail-in ballots” from military voters had been discarded in Luzerne County in northeastern Pennsylvania, according to ABC News.
Of the nine ballots that were discarded and then recovered, seven were cast for presidential candidate Donald Trump,” an updated news release said. “Two of the discarded ballots had been resealed inside their appropriate envelopes by Luzerne elections staff prior to recovery by the FBI and the contents of those 2 ballots are unknown.”
While the claim is that the ballot envelopes were opened because they resembled requests for an absentee ballot, Trump still labeled the tossing of his vote results a “scam”and “proof” that mail-in ballots are vulnerable to fraud, according to NPR.org.
Rules in all three states prevent mailed ballots from being counted until Election Day. That could lead Trump to declare victory before a “blue wave” of votes for Democratic nominee Joe Biden appears.
“The possibility that we could have another Florida is maybe heightened a little bit” because of the expected onslaught of absentee ballots, said Dale Ho, director of the voting rights project at the American Civil Liberties Union. “The possibilities just get too crazy.”
