The Supreme Court may tip the 2020 elections

The Supreme Court may tip the 2020 elections

Its rulings on a rush of deceptively low-profile cases could prove decisive—and divisive

United States
Aug 31st 2020
NEW YORK

TWENTY YEARS after Bush v Gore, the Supreme Court is again poised to influence a presidential election. Whether this involves the drama of another clinching verdict after a close result is to be seen. But the nine justices are already shaping the race through small decisions on voting rules, reached without a hearing and often with little written explanation.

Litigation over voting always increases before elections, but 2020 is setting records. The rival campaigns are funding a raft of lawsuits, including at least 226 related to the pandemic across 43 states, Puerto Rico and the District of Columbia. Most involve Democratic moves to expand voting opportunities or Republican efforts to quash them (wider access to the ballot typically helps Democrats). In Pennsylvania, for instance, the Democratic governor and Republican legislature are locked in a battle over how to handle an expected deluge of ballots sent by mail. The Trump campaign is suing there, as well as in Nevada and New Jersey. Mr Trump claims, with little evidence, that these states’ plans to expand postal balloting—including the use of drop boxes—invite voter fraud.

In the Nevada case, his lawyers also oppose an increase in the number of polling stations in more populous counties. They say this violates a principle in Bush v Gore—the 5-4 decision halting a recount in Florida—that requires states to provide “uniform treatment” for all voters. But by its own lights, Bush v Gore was “limited to the present circumstances” of the 2000 election since the duty of treating voters even-handedly “presents many complexities”.

Many of this year’s voting quarrels are bound to end up at the Supreme Court, where the conservative majority has shown little interest in expanding voter participation. In Republican National Committee v Democratic National Committee, the justices split 5-4 in April on whether to make absentee voting easier in the Wisconsin primary. The coronavirus had prompted many Wisconsinites to opt to vote by mail, but as many as 12,000 ballots had not yet reached their mailboxes on the eve of election day. A lower court said that, given the circumstances, absentee ballots could be counted as long as they arrived at counting stations no more than six days later. But the Supreme Court blocked that fix; it said changing the rules so close to an election would inspire “judicially created confusion”. Justice Ruth Bader Ginsburg was unimpressed. “It boggles the mind”, she wrote in her dissent, that the court would risk “massive disenfranchisement” by treating voting during a pandemic as no different from “an ordinary election”.

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