By Robert Willmann
Twenty years ago in the presidential election, a close vote in Florida caused a recount to happen, and led to lawsuits in state and federal courts about the recount. In the midst of the spectacle, actual legitimate discussion was heard on television and in the media about the process and the Electoral College. The Supreme Court eventually short-circuited the state proceedings and essentially made George W. Bush the winner, when Al Gore, the nominee of the Democratic Party, decided not to challenge the situation in the Electoral College and Congress . But in today's propagandized and polarized election cycle, court action has already started.
Three times in the last seven days, the Supreme Court has ruled on requests about lawsuits. The court did not agree to hear and decide the cases. Instead, it was ruling on two requests about whether a lower court order would remain in effect until an appeal was concluded, and whether to shorten its usual timetable for deciding if a case will be accepted to be heard.
The cases come out of Wisconsin, Pennsylvania, and North Carolina. They deal with who gets to decide what the election procedures will be, which is supposed to be the state legislatures, with a possible backup by Congress. This general principle comes from Article 1, section 4, clause 1 of the U.S. Constitution–
"The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators".
The Wisconsin and North Carolina cases concern absentee ballots, and the Pennsylvania case is about all mail-in ballots, since in that state all registered voters can cast their ballots by mail. In 2019, the Pennsylvania legislature passed a law to allow voting by mail. Voters can apply for absentee or mail-in ballots 50 days before the election.
When the Supreme Court issues orders about requests that are not a final opinion and decision in a case they have agreed to hear, most of the time the order is just one sentence that the item has been granted or denied. Sometimes a judge will write his or her thoughts about the order when concurring or dissenting from the order, or issue a "statement" about the order. And one or more of the other judges may join in what was written about an order. There is no listing of how each judge voted on each of these regular orders.
On 26 October 2020, in the Wisconsin case, the Supreme Court denied a request by the Democratic National Committee (and other parties) to vacate an order by the federal Seventh Circuit Court of Appeals that "stayed" (or suspended) an order from a federal district court (the trial court) . The district court had issued an injunction that "extended the deadline for receipt of absentee ballots by six days — from election day, November 3, to November 9, so long as the ballots are postmarked on or before election day, November 3". Chief Judge John Roberts wrote a concurring opinion, as did Judge Neil Gorsuch. Judge Brett Kavanaugh joined Gorsuch's concurrence, and wrote a separate 18-page opinion. Judge Elena Kagan dissented, joined by Judges Stephen Breyer and Sonia Sotomayor.
On 28 October 2020, in the North Carolina case, the Supreme Court denied a request to block changes made in that state's election laws . Absentee ballots were supposed to be postmarked on or before election day, and they were to be received not later than three days after election day. But changes were made to that law by the State Board of Elections, and others, that included extending the absentee ballot receipt deadline by six additional days, which would make the deadline November 12. Judge Clarence Thomas indicated that he would grant the application to block the changes. Gorsuch, joined by Judge Sam Alito, wrote a dissenting opinion, again stressing that legislatures are to make the election laws and procedures.
On 28 October 2020, in the Pennsylvania case, the Supreme Court declined to speed up its timetable to decide whether to hear and decide the case, which has been lingering for awhile. In that state, the law required that all mailed ballots be received by 8:00 p.m. on election day. But the Pennsylvania Supreme Court changed the existing law such that "ballots are to be treated as timely if they are postmarked on or before election day and are received within three days thereafter". And, "a ballot with no postmark or an illegible postmark must be regarded as timely if it is received by that same date", three days after the election.
The case started back on 10 July 2020, when the Pennsylvania Democratic Party sued the Pennsylvania Secretary of State to change some voting procedures. On 17 September 2020, the Supreme Court of Pennsylvania handed down its decision changing the election law there, and allowed the Republican Party of Pennsylvania to intervene in that case.
On 28 September 2020, two members of the Pennsylvania Senate asked the U.S. Supreme Court to issue a stay order to prevent the Pennsylvania court's order from taking effect, while court action continued. This request was denied on 19 October 2020, with the notation that Judges Thomas, Alito, Gorsuch, and Kavanaugh would have granted the stay order.
Then on 23 October 2020, the Republican Party of Pennsylvania filed a petition in the U.S. Supreme Court asking if it will agree to hear and decide the case about what the Pennsylvania Supreme Court has done in changing the election procedures. The same day, the petitioners asked the Supreme Court to decide whether or not it will agree to hear the case in a shorter time frame than the usual schedule, because of the election on Tuesday, 3 November. It was this request to speed up the decision-making process in the Supreme Court that was denied on 28 October, last Wednesday, and about which Judges Alito, Thomas, and Gorsuch added their "statement" .
Amy Coney Barrett was confirmed by the Senate to be a judge on the Supreme Court on Monday, 26 October 2020. That night, an initial swearing-in took place by Judge Clarence Thomas on the south lawn of the White House as a public event. The next day, she took the judicial oath, administered by Chief Judge John Roberts, at a private ceremony in the Supreme Court building. She could then start to work at the court. Although the orders in the Pennsylvania and North Carolina cases were issued on 28 October, she did not have time to read up on them, and each order included a statement that "Justice Barrett took no part in the consideration or decision" of the particular request.
These are only the cases that are most recently knocking on the door of the Supreme Court. None of them have been finalized yet as a legal matter.
Other cases are out there, and more will likely be filed. One from Minnesota was decided by the federal Eighth Circuit Court of Appeals last Thursday, 29 October 2020. It also involves the counting of absentee ballots .
According to the 8th Circuit's opinion, any eligible voter in Minnesota may vote by absentee ballot. Voters have been able to cast absentee ballots since 18 September, which is 46 days before the election. Ballots must be hand-delivered by 3:00 p.m. or received by mail by 8:00 p.m. on election day. In May 2020, a lawsuit was filed in state court against the Minnesota Secretary of State to change the deadline for receiving ballots. For the general election, a settlement was made as a consent decree. Minnesota agreed to count all mail-in ballots with a postmark of Election Day or before, if those election officials received the ballots within five business days (seven calendar days) of election day. If a mail ballot did not have a postmark, the election official “should presume that it was mailed on or before Election Day unless the preponderance of the evidence demonstrates it was mailed after the Election Day.”
A lawsuit was then filed in federal court against the consent decree. The trial judge denied relief, and on appeal, the 8th Circuit reversed the trial court and ordered the trial judge to enter a temporary injunction that election officials are to identify, segregate, and otherwise maintain and preserve all absentee ballots received after the deadlines in a manner that will allow them to be removed from vote totals in the event a final order is entered by a court of competent jurisdiction determining such votes to be invalid or unlawfully counted. Thus, the Minnesota case goes back to the federal trial court to resolve issues in the case. The ballots received after the deadline are to be kept segregated so that they can be removed from vote totals if the result of the lawsuit (or another one?) is that the votes are not valid and should not be counted.
These changes in election laws that are not made by a legislature are creating the problem of segregating ballots that come in under the changes so that when a lawsuit is over, a ruling can be made as to whether the ballots should be counted or not. Depending on how close the election is in a given state, the late changes done by courts and state officials can also create a time problem from the delay it will take to get a final vote total. A squeeze play can occur in the time frame in which the election for president and vice-president is to be concluded.
This brings us to the Big Mama and Daddy: the Electoral College. It is to meet the first Monday after the second Wednesday in December, which will be 14 December. There are 538 Electors, and so a candidate needs 270 votes from that group to win.
According to the National Archives: "All States, except for Maine and Nebraska have a winner-take-all policy where the State looks only at the overall winner of the state-wide popular vote. Maine and Nebraska, however, appoint individual electors based on the winner of the popular vote for each Congressional district and then 2 electors based on the winner of the overall state-wide popular vote. Even though Maine and Nebraska don't use a winner-take-all system, it is rare for either State to have a split vote. Each has done so once: Nebraska in 2008 and Maine in 2016". And, "The District of Columbia is allocated 3 electors and treated like a State for purposes of the Electoral College under the 23rd Amendment of the Constitution" .
The Federal Election Commission publishes a report of the results of federal elections for president, senator, and representative. I pulled three pages from its 2016 report. One page gives the popular vote summary for all candidates who were on at least one state ballot; another gives the popular vote and the vote of the electoral college for 2016; and the third one is a map showing the vote by the Electoral College in each state for Hillary Clinton and Donald Trump. Maine split its Electors with three for Hillary and one for Trump. In Texas, one Elector voted for John Kasich and one for Ron Paul. In Hawaii, one Elector voted for Bernie Sanders. In Washington state, one elector voted for Faith Spotted Eagle, and three voted for Colin Powell. Texas has 38 electoral votes, and this is why the map shows the number 36 in Texas, which is the number of Electors who voted for Trump. That adjustment was also made for Washingon state (which has 12 total), and Hawaii (which has 4 electoral votes) .
How the lawsuits will play out in the U.S. Supreme Court is like reading tarot cards. From the writings attached to the recent orders, it looks as if Judges Thomas, Alito, Gorsuch, and probably Kavanaugh are inclined to stay with the laws as written by state legislatures. However, Judge John Roberts, in his one-page concurring opinion about a stay order in the Wisconsin case, saw a difference between a state court modifying an election procedure and a federal court "[intruding] on state lawmaking processes". He seems inclined to not get involved when state courts and officials rewrite laws passed by a legislature. Amy Coney Barrett can participate in new and pending items starting on 27 October. If she takes the position that clearly written state election laws should not be modified by either state or federal actors and judges, some action may be forthcoming.
 Bush v. Gore, 531 U.S. 98 (2000), which decided the 2000 presidential election
 The Wisconsin case: Democratic National Committee vs. Wisconsin State Legislature, No. 20A66 (U.S. October 26, 2020) (order denying application to vacate stay)
 The North Carolina case: Moore vs. Circosta, No. 20A72 (U.S. October 28, 2020) (order denying application for injunctive relief)
 The Pennsylvania case: Republican Party of Pennsylvania vs. Boockvar, No. 20-542 (U.S. October 28, 2020) (order denying motion to expedite consideration of the petition for certiorari)
 The Minnesota case: Carson vs. Simon, No. 20-3139 (8th Cir. Oct. 29, 2020)
 The Electoral College
 Three pages on the 2016 presidential election from the Federal Election Commission report on the federal elections of that year