- On Monday, the U.S. Supreme Court deadlocked itself in a decision that would have cut short the amount of time Pennsylvania‘s election officials had to receive mail-in ballots.
- Because of the 4-to-4 tie, a lower court decision granting an extended deadline stayed.
- Several states have also seen major rulings regarding voting recently. In Michigan on Friday, an appeals court judge ruled in favor of prohibiting ballots from being turned in past 8 p.m. on Election Day in the state.
- In Texas, an appeals court judge ruled Monday that state election officials can reject mail-in ballots over mismatched signatures without giving voters a chance to appeal.
SCOTUS Denies Pennsylvania GOP Request Limiting Mail-in Voting
The U.S. Supreme Court denied a request from Pennsylvania’s Republican Party on Monday that would have shortened the deadline for state election officials to receive absentee ballots.
The GOP request was an appeal to a decision by the Pennsylvania Supreme Court last month. In that decision, the state Supreme Court sided with Democrats, granting them an extension to the deadline for which mail-in ballots could be received. That extension moved the cut off date from 8 p.m. on Election Day (Nov. 3) to 5 p.m. on the following Friday (Nov. 6).
The Pennsylvania Supreme Court cited several reasons, including potential mail delays and the fact that state law allows mail ballots to be cast on Election Day. To be clear, this extension only applies to the date election officials in the state can still accept mail-in ballots; those ballots must still be postmarked by Election Day.
Following that decision, Pennsylvania’s GOP accused the state Supreme Court of exceeding its powers and unconstitutionally changing election law. From there, they appealed the decision to the U.S. Supreme Court, who ultimately agreed to hear it.
On Monday, SCOTUS was split: Chief Justice John Roberts sided with liberal judges Sonia Sotomayor, Elena Kagan, and Stephen Breyer in denying the request. Meanwhile, conservative justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Neil Gorsuch all dissented.
With the notable exception of Ruth Bader Ginsburg who died last month, that meant the court was deadlocked 4-4; however, when the court is deadlocked, the decision from the lower court remains in place.
Immediately, Democrats cheered the news, especially since Pennsylvania is a key swing state and this extension could decide the fate of thousands of ballots. Notably, in 2016, President Donald Trump won the state by 44,000 votes.
On the other hand, Republicans expressed disappointment over the news, and many of them emphasized the fact that this was a deadlocked decision.
Pennsylvania GOP Chair Lawrence Tabas said Monday’s decision “only underscores the importance of having a full Supreme Court as soon as possible.”
To that point, if Judge Amy Coney Barrett is confirmed to the Supreme Court, she could be placed on the bench as early as the week before the election, meaning that if more election-related cases come before SCOTUS, as they very likely will, she could end up being the deciding vote.
Michigan Court Restricts Mail-in Voting Return Deadline
While SCOTUS’ Pennsylvania decision may be the most high-profile mail-in voting decision seen by a court in recent days, by no means is it the only one.
In fact, on Friday, an appeals court in Michigan handed down a decision opposite to what SCOTUS ruled in Pennsylvania. There, a judge ruled that ballots must be received by 8 p.m. on Election Day or they won’t be counted.
Notably, that decision overturned a lower court decision which had stated that ballots postmarked by Nov. 2 could be counted if they were received within 14 days of Election Day.
Texas Can Reject Ballots Because of Signatures, Without Allowing Voters to Appeal
An appeals court judge in Texas has also ruled that state election officials can reject mail-in ballots over mismatched signatures, all without giving voters a chance to appeal if their ballot is rejected.
Essentially, if election officials decide that a signature on a ballot can’t be verified, they’re allowed to reject that ballot without notifying voters until after the election.
Like Michigan, the appeals court overturned a lower court ruling. In this case, that ruling would have required the Texas secretary of state to either advise election officials not to reject mail-in ballots because of signatures or require them to set up a notification system that gave voters a chance to challenge rejections.
Appeals Court Judge Jerry E. Smith, who handed down Monday’s decision, said requiring either process would compromise mail-in ballot integrity.
“Texas’s strong interest in safeguarding the integrity of its elections from voter fraud far outweighs any burden the state’s voting procedures place on the right to vote,” Smith added.
The League of Women Voters of Texas, who were plaintiffs in the lawsuit that brought about the original decision, called Smith’s decision “deeply disappointing because it allows the State to shirk its responsibility to ensure that each vote is counted during an incredibly important election while a deadly global pandemic rages on.”
See what others are saying: (Axios) (NPR) (Texas Tribune)
Senate Democrats To Introduce Voting Rights Bill This Week
Republicans are expected to block the legislation, but Democratic leaders hope the GOP’s unified opposition will lay the groundwork to justify getting rid of the filibuster.
Voting Bill Set for Floor
Senate Democrats are officially set to advance their voting rights bill this week, with a procedural vote to start debate on the legislation scheduled for Tuesday.
The move comes as an increasing number of Democrats and progressive activists have begun to embrace a more watered-down version of the bill proposed by Sen. Joe Manchin (D-W.V.), the sole Democrat who opposed the initial proposal on the grounds that it was too partisan.
While Democrats have spent the weekend hashing out the final details of compromise on Manchin’s bill, which he has touted as a more bipartisan compromise, Senate Republicans have still broadly rejected it.
Minority Leader Mitch McConnell (R-Ky.), who previously opposed the initial For the People Act as too far-reaching, called Manchin’s alternative proposal “equally unacceptable” and predicted that no members of his party will vote in favor.
The legislation is all but guaranteed to fail in the chamber, where it will require all 50 Democrats and at least 10 Republicans to overcome the filibuster.
However, bringing the bill to the floor still has major utility for Democrats because it will lay the groundwork for the party to justify scrapping the filibuster entirely.
Pathway for Filibuster Reform
Specifically, if Manchin agrees to some form of the bill which Republicans then filibuster, Democrats can say they had the to votes to pass the legislation if the filibuster were removed.
That, in turn, would bolster the Democratic argument that bipartisanship cannot be a precondition to taking actions to secure our democracy if it relies on reaching common ground with a party that they believe is increasingly and transparently committed to undermining democracy.
It would also give more ground to the Democratic claim that the GOP is abusing existing Senate rules to block policy changes that have gained wide public support following the Jan. 6 insurrection and amid the growing efforts by Republican governors and legislatures to restrict voting access in their states.
As a result, if Republicans block the legislation along party lines, Democratic leaders hope that could change objections to scrapping the filibuster voiced privately by some members and publicly by Manchin and Sen. Kyrsten Sinema (D-Az.).
This is especially true for Tuesday’s planned vote, because it is just a vote to proceed to debate, meaning that if Republicans filibuster, they will be preventing the Senate from even debating any efforts to protect democracy, including Manchin’s plan which he crafted specifically to reach a compromise with the GOP.
Whether a full party rejection would be enough to move the needle for Manchin and the other Democrats remains to be seen. Any successful overhaul of the contentious Senate rule would not only be incredibly significant for President Joe Biden’s agenda, but also for the precedent it could set.
See what others are saying: (The New York Times) (Reuters) (USA Today)
McConnell Says He Would Block a Biden SCOTUS Nominee in 2024
The Senate Minority Leader also refused to say whether or not he would block a hypothetical nominee in 2023 if his party overtakes the chamber’s slim majority in the midterm elections.
McConnell Doubles Down
During an interview with conservative commentator Hugh Hewitt on Monday, Senate Minority Leader Mitch McConnell (R-Ky.) threatened to block a hypothetical Supreme Court nominee from President Joe Biden in 2024 if Republicans took control of the Senate.
“I think in the middle of a presidential election, if you have a Senate of the opposite party of the president, you have to go back to the 1880s to find the last time a vacancy was filled,” he said. “So I think it’s highly unlikely. In fact, no, I don’t think either party if it controlled, if it were different from the president, would confirm a Supreme Court nominee in the middle of an election.”
McConnell’s remarks do not come as a surprise as they are in line with his past refusal to consider former President Barack Obama’s nomination of Merrick Garland to the court in February 2016 on the grounds that it was too close to the presidential election.
The then-majority leader received a ton of backlash for his efforts, especially after he forced through Amy Coney Barrett’s confirmation just eight days before the 2020 election. At the time, McConnell argued the two situations were different because the Senate and the president were from the same party — a claim he reiterated in the interview.
McConnell also implied he may take that stance even further in comments to Hewitt, who asked if he would block the appointment of a Supreme Court justice if a seat were to be vacated at the end of 2023 about 18 months before the next inauguration — a precedent set by the appointment of Anthony Kennedy.
“Well, we’d have to wait and see what happens,” McConnell responded.
Many Democrats immediately condemned McConnell’s remarks, including progressive leaders who renewed their calls to expand the court.
“Mitch McConnell is already foreshadowing that he’ll steal a 3rd Supreme Court seat if he gets the chance. He’s done it before, and he’ll do it again. We need to expand the Supreme Court,” said Sen. Ed Markey (D-Ma.).
Some also called on Justice Stephen Breyer, the oldest SCOTUS judge, to retire.
“If Breyer refuses to retire, he’s not making some noble statement about the judiciary. He is saying he wants Mitch McConnell to handpick his replacement,” said Robert Cruickshank, campaign director for Demand Progress.
Others, however, argued that the response McConnell’s remarks elicited was exactly what he was hoping to see and said his timing was calculated.
The minority leader’s comments come as the calls for Breyer to step down have recently grown while the current Supreme Court term draws near, a time when justices often will announce their retirement.
On Sunday, Rep. Alexandria Ocasio-Cortez (D-N.Y.) was asked if she thought Breyer should leave the bench while Democrats still controlled the Senate. She responded that she was “inclined to say yes.”
With his latest public statement, McConnell’s aims are twofold here: he hopes to broaden divisions in the Democratic Party between progressives and more traditional liberals, who are more hesitant to rush Breyer to retire or expand the court, while simultaneously working to unite a fractured Republican base and encourage them to turn out in the midterm elections.
See what others are saying: (The New York Times) (CNN) (The Hill)
Gov. Abbott Says Texas Will Build Border Wall With Mexico
The announcement follows months of growing tension between the Texas governor and President Biden over immigration policies.
Texas Border Wall
Texas Gov. Greg Abbott (R) announced during a press conference Thursday that the state would build a border wall with Mexico, extending the signature campaign promise of former President Donald Trump.
Abbott provided very few details for the border wall plans, and it is unclear if he has the authority to build it.
While some of the land is state-owned, much of it belongs to the federal government or falls on private property.
Even if the state were able to build on federal ground, private landowners who fought the Trump administration’s attempts to take their land through eminent domain would still remain an obstacle for any renewed efforts.
During his term, Trump built over 450 miles of new wall, but most of it covered areas where deteriorating barriers already existed, and thus had previously been approved for the federal project.
The majority of the construction also took place in Arizona, meaning Abbott would have much ground to cover. It is also unclear how the governor plans to pay for the wall.
Trump had repeatedly said Mexico would fund the wall, but that promise remained unfulfilled, and the president instead redirected billions of taxpayer dollars from Defense Department reserves.
While Abbott did say he would announce more details about the wall next week, his plan was condemned as ill-planned by immigration activists, who also threatened legal challenges.
“There is no substantive plan,” said Edna Yang, the co-executive director of the Texas-based immigration legal aid and advocacy group American Gateways. “It’s not going to make any border community or county safer.”
Abbott’s announcement comes amid escalating tensions between the governor and the administration of President Joe Biden.
Biden issued a proclamation that stopped border wall construction on his first day of office, and has since undone multiple Trump-era immigration policies. Abbott, for his part, has blamed Biden’s rollback of Trump’s rules for the influx of migrants at the border in recent months.
Two weeks ago, the governor deployed over 1,000 National Guard members and troopers from the Texas Department of Public Safety to the border as part of an initiative launched in March to ramp up border security dubbed Operation Lone Star.
Last week, Abbott issued a disaster declaration which, among other measures, directed the Texas Health and Human Services Commission to strip the state licenses of all shelters that house migrant children and have contracts with the federal government.
The move, which federal officials have already threatened to take legal action against, could effectively force the 52 state-licensed shelters housing around 8,600 children to move the minors elsewhere.
During Thursday’s press conference, Abbott also outlined a variety of other border initiatives, including appropriating $1 billion for border security, creating a task force on border security, and increasing arrests for migrants who enter the country illegally.
“While securing the border is the federal government’s responsibility, Texas will not sit idly by as this crisis grows,” he said. “Our efforts will only be effective if we work together to secure the border, make criminal arrests, protect landowners, rid our communities of dangerous drugs and provide Texans with the support they need and deserve.”