Justice Barrett’s baptism by fire: Protecting the integrity of elections

As the U.S. Supreme Court’s newest member, Justice Amy Coney Barrett immediately became enmeshed in a controversy that the high court, for its own sake and that of the country, must decide this week. 

In an indefensible act of partisan muscle-flexing and judicial usurpation of legislative power, Pennsylvania’s Democratic-controlled state Supreme Court overturned a perfectly valid statute, enacted by the state General Assembly, that required all mail-in and absentee ballots to be delivered to the appropriate county board of elections no later than 8 p.m. on Election Day. Unlike the federal judiciary, which is insulated from electoral politics, Pennsylvania judges are elected. As is the custom of partisans driven by politics, as opposed to detached magistrates guided by law, the Democratic majority ruled 4-3 to modify the statute for purposes of the upcoming election.

The ostensible rationale was the coronavirus pandemic. That is yet another indicator of judicial imperiousness: Like the rules governing elections, health care regulation is principally a public policy area to be addressed legislatively, not determined by litigation. In their wisdom, although the four-judge Democratic majority admitted that the statute at issue was validly enacted and substantively sound, they nevertheless amended it, dictating that the counting of ballots must continue through Nov. 6 – three days after Election Day.

Even worse, the court decreed a new judicial presumption: Absent hard evidence that a ballot was submitted after Nov. 3, it is to be deemed timely. This means ballots lacking an intelligible postmark — or, indeed, any postmark at all — are to be treated as if they were submitted on or before Election Day, even if they were actually submitted after Nov. 3.

Manifestly, the pandemic is not the real reason for the lawless tinkering with a valid state law. The state court was encouraged by the Pennsylvania Democratic Party. The Keystone State is a battleground. The vote is expected to be tight and the result could be decisive in terms of which candidate wins the presidency. Extending the deadline for counting, and complicating the count with additional ballots submitted after Nov. 3 — i.e., after results across the state and across the country have been announced — creates blatant opportunities for cheating, for changing the outcome after the contest is supposed to be over. 

This ruling was an outrageous abuse of power. The Pennsylvania court ignored constitutional law that gives state legislatures, not state courts, the power to set the conditions for presidential elections. It flouted the authority of Congress to set the date for presidential elections — which it had done by federal statute. And it violated Supreme Court jurisprudence instructing that a) states may not change the rules controlling elections close to the date set for the election, and b) courts should defer to the political branches in the balancing of public interests affected by a public health crisis.

Despite all that, the Supreme Court obstinately refused to act. 

The state Republican Party brought a lawsuit asking the justices to stay the Pennsylvania court’s rewriting of the law. Yet, the Supreme Court declined to hear the case. The court’s four conservative justices — Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — objected to the court’s denial of review. That necessarily means that Chief Justice John Roberts voted with the court’s three liberals — Stephen Breyer, Sonia Sotomayor and Elena Kagan — to create a 4-4 deadlock. Since a tie means there is no ruling from the high court, the Pennsylvania court’s decision stands. 

This was another indecorous maneuver by Roberts, a putative conservative who has proved to be more of a political operator. Roberts prizes the court’s reputation as a nonpartisan institution over the tribunal’s integrity as a judicial body that decides cases in accordance with whatever the law requires, without fear of favor. That is, the chief justice appears more concerned about what the liberal mainstream media will say about the court’s decisions than whether those decisions are correct.

Roberts is thus hypersensitive to the Democrats’ recent saber-rattling about court-packing: The unabashed threat that, if the court fails to render judgments pleasing to the left, Democrats — if they prevail in the election and win control of the presidency and both houses of Congress — will expand the size of the court and fill the new seats with progressive partisans. That, obviously, would be the death knell of the judiciary’s critical role in the Constitution’s delicate separation of powers framework. The court would cease to be a non-political check on the political branches, becoming a super-legislature, which each party would expand and pack when it next had the opportunity to do so. 

This is why court-packing is an unpopular idea that lacks congressional support. It would require eradicating the Senate filibuster (the requirement of 60 votes to allow consideration of major legislation), and not enough Senators favor so radical a step to accomplish it. The Democrats’ presidential nominee, former Vice President Joe Biden, a longtime senator who served as Judiciary Committee chairman for years, long has opposed court packing — though he has been afraid to say so, knowing this would demoralize voters on the extreme left, whom he needs to keep energized.

Roberts has made a gargantuan miscalculation. The Democrats’ threats against the court are more of a fit of pique than a promise of action. But bending to extortion always guarantees more extortion. Deciding how to handle cases based on political calculations, rather than legal principles, signals to partisans that political heat works — which means the justices will continue being subjected to it.

Still worse: The court’s failure to reaffirm before the election its jurisprudence holding that eleventh-hour changes are impermissible, and that courts must defer to legislatures, is likely to have two catastrophic results. First, it will encourage more states to change the rules at this late stage, inviting post-election mischief. Second, that mischief would necessitate that the court intervene at some point after the election, which means the justices would be perceived, however unfairly, as deciding who will be the next president, rather than merely setting in stone — before Election Day, with no favoritism toward either candidate — the rules under which the election must proceed.

The Pennsylvania controversy is not going away. Having lost in their quest to convince the Supreme Court to stay the state court’s ruling, Republicans have returned to the justices, asking them to decide the merits of the cases — imploring them to do so in the next few days, since similar shenanigans in other states could spell post-election chaos.

This is not a matter of tilting the scales in favor of either candidate. It is a matter of ensuring that the election will be decided on Nov. 3, not on Nov. 3, 4, 5, 6 — or as many days as it takes to destroy the election’s integrity.

As Justice Amy Coney Barrett escapes the frying pan of the confirmation process, the fire of election-law litigation awaits her … as the ninth vote.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest book is “Ball of Collusion.” Follow him on Twitter @AndrewCMcCarthy.