Think This Election Will End Up in Front of the Supreme Court? It's Already There.
Plus: Fewer Americans are watching sports, Milton Friedman's powerful TV series turns 40, Amy Coney Barrett joins the Supreme Court, and more...
The 2020 presidential election is already being litigated in front of the U.S. Supreme Court even though Election Day is still a week away.
In a few key swing states, the rules under which the election will be conducted remain unsettled, including the potentially all-important question of when the polls will actually close—that is, when will states stop accepting mail-in ballots. Newly confirmed Justice Amy Coney Barrett could help decide these questions, though she may recuse herself (more on that in a minute).
The three outstanding cases involve absentee ballot rules in Pennsylvania, North Carolina, and Minnesota. In all three cases, Republicans are asking the Supreme Court to block state-level rules set by Democrats that allow mail-in ballots to be counted even if they are received days after the election, as long as the ballots appear to have been mailed by Election Day. In a close race, the decision to count ballots that are received in the days after the election—or, in North Carolina's case, all the way up until Nov. 12—could tip the results one way or another.
Generally, the Supreme Court has been deferential to state officials when it comes to setting the rules for elections. Indeed, that's what happened again on Monday night when the Court rejected a challenge brought by Democrats that sought to force Wisconsin to accept absentee ballots for up to six days after the election—overturning a district court ruling that had ordered the state to do so.
"No one doubts that conducting a national election amid a pandemic poses serious challenges," wrote Justice Neil Gorsuch in one of three concurring opinions released as part of the 5–3 ruling (there was no majority opinion). "But none of that means individual judges may improvise with their own election rules in place of those the people's representatives have adopted."
Gorsuch's opinion and separate concurring opinions from Justice Brett Kavanaugh and Chief Justice John Roberts may indicate how the Court is approaching similar issues in the Minnesota, North Carolina, and Pennsylvania cases. In fact, Kavanaugh and Justice Elena Kagan, who wrote the dissenting opinion in yesterday's Wisconsin case, spent a fair bit of time in their respective opinions debating Pennsylvania rather than Wisconsin.
That's because the Pennsylvania case is different in a subtle but potentially important way. Unlike the Wisconsin case, which moved through the federal court system up to the U.S. Supreme Court, the Pennsylvania case is on appeal from the state Supreme Court.
In his concurring opinion on Monday, Kavanaugh went out of his way to drop in a footnote explicitly noting that "under the U.S. Constitution, the state courts do not have a blank check to rewrite state election laws for federal elections"—an interesting thing to write since the Wisconsin case had nothing to do with state courts. Roberts, too, preemptively addressed that distinction by highlighting the fact that the Wisconsin case was the result of a federal judge's "intrusion on state lawmaking process."
In Pennsylvania, it was the state Supreme Court that may appear to have intruded on the lawmaking process. Last month, it effectively rewrote the state's election laws by ordering that absentee ballots received by November 6, three days after the election, would be counted as long as there was no hard evidence to suggest they had been mailed after that date.
The North Carolina and Minnesota cases are less fraught. In both cases, Republicans are seeking to block state-level rules allowing ballots to be received until Nov. 12 and 10, respectively. But in both cases, federal courts have so far upheld those rules, so there is no issue of whether judges or lawmakers get the final say on election rules.
All three rulings are expected in the coming days. And if all of that isn't confusing enough, there's another wrinkle: Barrett was officially sworn in on Monday night and could play a role in these high-profile cases. "Recusal is never required just because a case is controversial or politically fraught," writes Jonathan Adler at The Volokh Conspiracy, but he notes that there's also no real precedent for our current moment.
The best-case scenario is that none of this ultimately matters. With huge numbers of early and absentee votes already cast, the number of ballots received after Election Day may be lower than many people hope or fear. But if the election ends up being close, the Supreme Court is already playing a role in determining the outcome.
FREE MINDS
The pandemic disrupted sports—and now Americans aren't watching as much. Television ratings for the NBA's championship series were down 49 percent from a year ago and the NHL's championship series saw viewership drop by 61 percent. "Even the usually untouchable N.F.L. was down 13 percent through Week 5," The New York Times reports.
Why? "Fewer people are watching television. More viewers than normal are choosing to watch news. Game schedules were optimized to safely complete events in a compressed time frame, not to maximize viewership."
FREE MARKETS
Forty years after it first aired, Milton Friedman's documentary series Free To Choose is still a powerful argument for classical liberalism.
"It was an unapologetic defense of why capitalism was both morally and pragmatically superior to socialism," says Nick Gillespie in a new Reason TV video marking the documentary's anniversary. "Over the course of 10 hour-long episodes, the Nobel laureate economist laid out the pitfalls of protectionism, espoused the virtues of school choice, and explained why spending, not taxes, is the real measure of the burden that governments put on their citizens."
Needless to say, those lessons remain as relevant as ever during a presidential campaign between two men who are promising more spending, more borrowing, and more protectionism.
ELECTION 2020
Indiana's Libertarian gubernatorial nominee, Donald Rainwater, is polling at 14 percent—lower than some previous polls that put his support as high as the mid-20s.
New polling in Indiana. pic.twitter.com/5Lr4RIrhX6
— Chris Spangle (@chrisspangle) October 26, 2020
QUICK HITS
- The Senate voted 52–48 on Monday night to confirm Amy Coney Barrett to the U.S. Supreme Court. Her confirmation was nearly a party-line affair, with Sen. Susan Collins (R–Maine) the lone senator to break ranks. Barrett was sworn in later Monday night in a ceremony at the White House.
- Protests erupted in Philadelphia after police fatally shot a black man wielding a knife.
- Some reasons why 2020 isn't like 2016.
- Police departments can't buy cell phone tracking "Stingray" devices anymore, so now cops are scrambling to get their hands on the Canadian version.
- Conservatives dominate social media, despite cries about censorship and unfairness, according to Politico.
