The Volokh Conspiracy
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SCOTUS Still Has PTSD From The 2020 Election
The Court will likely find standing in Bost to avoid the "nightmare scenario" of cancelling votes after they are cast.
Yesterday I wrote about Paul Clement's "Article III of the Deal" in Bost v. Illinois State Board of Election. It seems that the Court will find that a member of Congress has standing to challenge a law that permits the counting of absent ballots that are received two weeks after election day. Before the election, the law does not operate directly on candidates. And even after the election, the late-arriving ballots may have no appreciable impact on the outcome of the race. But during oral argument, several justices were mortified by the prospect of funneling these cases to post-election litigation. Specifically, the Justices worried that if the court finds that the Constitution prohibits counting these ballots, then judges would have to disqualify ballots. Indeed, the Supreme Court in particular might have to decide the outcome of the election!
It seemed clear that the Justices still have PTSD from the aftermath of the 2020 election.
Paul Clement, counsel for Representative Bost, spoke to these fears during his opening:
That decision is not only wrong but dangerous. It needlessly injects federal courts into the role of political prognosticators. It risks denying judicial access to minor party candidates, and it shuffles election disputes into the closest races and the worst possible context: Election disputes after the election, where federal courts are in the uncomfortable position of having to pick the political winners.
Justice Kavanaugh asked what would happen if this challenge was brought after the election. Paul Clement described throwing out votes as the "nightmare scenario."
JUSTICE KAVANAUGH: If it were after the election, how would that play out? In other words, if the litigation over issues like this were funneled to post-election? . . . So let's say the losing candidate sues, challenging this rule, and let's say the Court finds it --post-election, finds it illegal. We faced this in 2020 in some of our many cases pre-election. What's the remedy? . . . Do you throw out those votes? Because, if you do, some of those voters might say: Oh, I actually would have voted earlier if I had known. I'm just trying to figure out how that would play out.
MR. CLEMENT: So I think that would be the right remedy. And I think that's kind of a nightmare scenario for exactly the reason that you point out. And I don't think there's any reason for the standing rules to basically say that you have to decide all these issues in those nightmare scenarios or even in the very closest districts.
Later, Justice Kavanaugh reiterated that it would be the Supreme Court, in particular, that would have to decide these contests:
Kavanaugh: You've mentioned the word "chaos" a few times. I guess I'm worried about the chaos of post-election litigation and how would that play out in a circumstance like a challenge to this particular ballot-counting rule. In particular, let's suppose post-election challenge; therefore, no real issue of standing in a real close election, and the rule is found invalid. Have you thought about what the remedy would be in that circumstance? And it presumably comes to this Court. Maybe the House elections ride on it, so we know --we know which way we rule what the impact will be, which is never a good position.
Chief Justice Roberts, who is usually very reserved, seemed agitated by the Respondent's rule. He described Illinois's position as leading to a "potential disaster."
CHIEF JUSTICE ROBERTS: I'm sorry. Look, what you're sketching out for us is a potential disaster. In other words, you're saying, if the candidate's going to win by 65 percent, no standing. But, if the candidate, you know, hopes to win by a dozen votes --and there are places in the country where that happens over and over again --then he has standing. But we're not going to know that until we get very close to the election, right? And so it's going to be in the middle, the most fraught time for the Court to get involved in electoral politics. That's when you say we should jump in, as opposed to the more general, broad rule, Mr. Clement's broadest rule, I guess, is, look, he's a candidate. He's challenging a rule in the election. You know,-isn't that enough? And one reason, as I say, we'll be deciding that case then, you know, six months, nine months, maybe two years before the election, as opposed to the day after the votes have been counted.
Chief Justice Roberts, more than any member of the Court, wants to keep the judiciary out of post-election disputes. Then again, Roberts and Kavanaugh did not vote to grant cert in Republican Party of Pennsylvania v. DeGraffenreid (2021). This case would have decided the power of the state supreme court to alter deadlines for mailed ballots, outside the context of a pending election. The majority found the case was moot. Justice Alito, in dissent, aptly stated, "Now, the election is over, and there is no reason for refusing to decide the important question that these cases pose." He was right.
