It just doesn’t end. The Republicans are doing all they can to further damage civil rights, especially voting rights, in America. Just minutes before the shameless and hypocritical approval and installation of Amy Coney Barrett to the US Supreme Court, the Supreme Court ruled 5-3 that mail in ballots postmarked BEFORE election could be thrown out if received after Election Day.[i]
Wisconsin’s mail in voting laws required that ballots be received by Election Day to be counted. State Democrats requested an accommodation for the pandemic to give some flexibility to the requirement. A Federal Judge ordered that ballots should be accepted up to six days after Election Day so long as they were postmarked by Election Day.[ii] That order was stayed by an Appeals Court. Justice Roberts said that Federal Court does not have the power to intrude on state lawmaking process.
In a very tortured concurrence, Justice Kavanaugh talks about the importance of deadlines in elections. That may be, but it ignores the fact that for a mail in ballot to be received by Election Day, the voter must reply on the US Postal Service, which the President has spent months dismantling for the very purpose of delaying mail in ballots. He says, “Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after Election Day and potentially flip the results of an election.” Those votes don’t “flip” an election, they are the election. An election isn’t decided until ALL the votes are counted. Just because one candidate was ahead late in the game and then loses because their opponent ultimately has more votes doesn’t mean the election was stolen or “flipped”.
Kavanaugh was also wrong when he said, “Other States such as Vermont, by contrast, have decided not to make changes to their ordinary election rules, including to the election-day deadline for receipt of absentee ballots.” Vermont did in fact make a change by mailing every voter a ballot more than thirty days before Election Day.[iii]
He was wrong when he cited the case Merrill v. People First of Alabama.[iv] They did not overturn a Federal Judge’s injunction, but rather supported a State election official making a unilateral decision banning curbside voting, which is not covered at all by the State’s election law.
It is disheartening to see the lack of intellectual rigor in recent appointees to the court.
As I mentioned the Postal Service above, it should be mentioned that Postmaster General DeJoy has unilaterally suspended all patrols by the Postal Police. Yes, the Postal Service has a police force. They provide security to post offices and accompany letter carriers on routes in dangerous areas. They have been pulled from the streets just a week before Election Day when we are relying on the Postal Service to deliver mail in ballots in a timely manner.[v] What could possibly go wrong?
If that wasn’t enough, Michigan’s Secretary of State issued a directive that prohibited open-carrying of guns “in a polling place, in any hallway used by voters to enter or exit, or within 100 feet of any entrance to a building in which a polling place is located”.[vi] You can guess where this is going, pro-gun-rights groups challenged and a Michigan Court of Claims judge struck down the directive.[vii] This directive followed the arrest of a group who were plotting to kidnap the governor of Michigan. Voters can expect to be confronted by guns when they go to vote. There is no legitimate reason for the other than voter intimidation.
There are at least two more election cases pending before the Supreme Court, relating to North Carolina and Pennsylvania. There are bunch at the Courts of Appeal and at various state courts. It’s far from over.
The author[s] is solely responsible for this blog submission. It does not represent the position of the New York State Bar Association or its Committee.