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Here's what the Supreme Court's threat to mail-in ballots really means

October 29, 2020 in Blogs

By Steven Rosenfeld

Two Supreme Court decisions issued Wednesday took no action to change 2020′s election rules in Pennsylvania and North Carolina, but statements from conservative justices warned that the high court would likely disqualify any absentee ballot received by election officials after Election Day—because those states’ legislatures had not extended the ballot return deadline.

“The important constitutional issue raised by this matter… could lead to serious post-election problems,” began the statement by Justice Samuel Alito concerning Pennsylvania, where the state supreme court extended the ballot deadline by three days to Friday, November 6.

“The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election,” Alito said, in a statement agreed to by Justices Clarence Thomas and Neil Gorsuch.

“In some respects, this case may be even more egregious,” wrote Gorsuch in his dissent in the North Carolina ruling, “given that a state court and the [statewide election] Board worked together to override a carefully tailored legislative response to COVID. Indeed, the president pro tempore of the North Carolina Senate and the speaker of its House of Representatives have intervened on behalf of the General Assembly to oppose revisions to its work.”

At first glance, the contention that state constitutions, state supreme courts and state boards of elections have no power to regulate elections without explicit authorization from federal authorities or state legislatures, could have radical implications. It would suggest states could not adopt policies that go beyond the federal standard. But, for now, the issue in play concerns the counting or the disqualifying of absentee ballots that will be received by officials after Election Day in two 2020 battleground states.

In recent days, the U.S. Supreme Court has issued rulings that rolled back accommodations made by lower federal courts after Republican-majority legislatures did not extend absentee ballot deadlines and loosen other voting rules in response to the pandemic. The newest Justice, Amy Coney Barrett, did not participate in either decision issued Wednesday.

The court’s conservatives said that they would have gone further in the <a target=_blank href="http://feeds.feedblitz.com/~/t/0/0/alternet/~https://assets.documentcloud.org/documents/20400331/20a72-order.pdf" …read more


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