- On Monday, Amy Coney Barrett was officially sworn in as the new justice on the Supreme Court, ending a highly contentious partisan battle just a week before the election.
- In the weeks following the election, the new justice is set to hear several landmark cases, including the most recent challenge to the Affordable Care Act (ACA) and another lawsuit that involves LGBTQ discrimination protections.
- Many critics have expressed concerns that Barrett will push the court to overrule the ACA and try to roll back LGBTQ protections based on her previous public statements and personal views.
- As soon as the end of this week, the Supreme Court will also decide whether or not to hear two election-related cases regarding mail-in ballots extensions in key battleground states.
Barrett Appointed to Supreme Court
The Senate officially approved the nomination of Amy Coney Barrett to the Supreme Court on Monday with a vote of 52 to 48.
The decison fell almost entirely along party lines, and though her nomination was hotly contested, this outcome was largely expected.
Sen. Susan Collins (R-Me.) was the only Republican to vote against the appointment. No Democrats voted to confirm Barrett, marking the first time in 151 years that not one member of the minority party voted to confirm a justice.
The confirmation marks the end of the historic, lightning-fast nomination process defined by partisan divisions. Democrats repeatedly accused their Republican colleagues of hypocrisy for breaking the precedent they themselves set when they blocked President Barack Obama’s Supreme Court nomination ten months before the 2016 election.
That decision was made under the premise that the nomination came too close to the election and that the next president should get to pick the nominee.
Now, with just seven days to go before the election, Republicans have their new Supreme Court justice, as well as a solid conservative majority on the highest court for the first time since the 1930s.
Here’s a look at what happens next.
Affordable Care Act
Judge Barrett is being seated right as the court is scheduled to hear some highly consequential cases. Arguably the most significant is the latest challenge to the Affordable Care Act (ACA), also known as Obamacare. The court will begin hearing oral arguments on starting Nov. 10, just one week after the election.
With Barrett assuming her role on the bench right as the court is set to hear the landmark case, many expressed concerns that she could still sway the court to get rid of the ACA, thus leaving more than 20 million Americans without health insurance during a pandemic.
The new justice has publicly criticized the Supreme Court decision that upheld Obamacare as constitutional. In a 2017 article, she argued that under an originalist reading of the Constitution — interpreting it the way it was originally written — Obamacare would not be allowed.
In that same article, Barrett also criticized Chief Justice Roberts’ stance on the ACA and claimed that he considered too many factors outside of the Constitution
Notably, when pressed on the topic during her Senate confirmation hearings, she did give some supporters of the law hope when she outlined her views on the legal doctrine known as severability, which allows for parts of a law to be struck down without getting rid of an entire law.
Barrett told the Senators that the presumption is to always favor severing parts of a given law rather than scrapping the whole thing. Some argued that opinion would be favorable for how she may rule on Obamacare, but others remained skeptical.
Even before hearing the ACA arguments, the Supreme Court is also set to take up another key case that could allow private agencies that receive taxpayer funding to provide government services to deny those services to people based on their sexual orientation.
The case stems from a lawsuit filed against the City of Philadelphia by Catholic Social Services (CSS) in 2018. City officials canceled a contract with the agency to provide foster care services to children after learning that CSS refused to accept same-sex couples as foster parents because of its own religious objections.
A lower court ruled that the city was allowed to end the contract because it fell under the enforcement of its anti-discrimination policy, and an Appeals Court upheld that decision. Now the case is set to go before the Supreme Court, and the consequences could highly significant.
“A broad ruling could decide when religious organizations deserve exemptions from anti-discrimination laws that the groups say would cause them to violate deeply held beliefs, such as what constitutes a marriage,” The Washington Post explained.
Many Democrats and activists have criticized Barrett for her controversial views on LGBTQ rights, specifically pointing to a lecture she gave in 2016 where she defended Supreme Court justices who argued against making gay marriage legal.
Others have also noted a separate speech she gave, where she argued that Title IX — the law that protects people from sex-based discrimination in education programs or other activities that receive federal funding — does not apply to trans people.
During the Senate hearings, Barrett was largely tight-lipped about her views on key Supreme Court decisions. At one point she refused to say whether she believed the case that established gay marriage as legal had been decided properly.
There are also some other legal battles that Barrett could rule on as early as later this week. This Friday, the justices are expected to meet privately to decide what cases could still be added to this term’s docket.
Two of the cases they are considering are emergency orders regarding ballot extensions in two key battleground states: Pennsylvania and North Carolina.
Last week, the Supreme Court denied a request from Pennsylvania’s Republican Party to shorten the deadline in which state election officials could receive absentee ballots. The highest court took up the case after Pennsylvania’s Supreme Court sided with Democrats and allowed them to extend the deadline that mail-in ballots could be received to three days after the election.
Notably here, the Supreme Court did not directly rule against the Republicans, but instead split the decision 4-4, meaning the court was deadlocked, and thus the decision from the lower court would stand.
But now, with the ninth seat filled, Pennsylvania Republicans are asking the court to reconsider blocking the extension and to fast-track the decision.
In a very similar legal battle, the high court has also been asked to consider whether or not to hear a case brought by the Trump campaign and the North Carolina Republican Party asking them to block a mail-in ballot extension approved by the State Board of Elections last month.
The extension would allow officials to receive ballots postmarked by Election Day for nine days after the election. So far, that new deadline has already been held up by a district court and a federal appeals court.
Wisconsin and Kavanaugh
Currently, it is unclear if the court will hear either case, though it is worth noting that they have taken up a number of similar election-related legal battles in recent weeks.
On Monday, the Supreme Court voted 5-3 to reject attempts by Democrats in Wisconsin to extend the deadline for accepting mail-in ballots to six days after the election. Instead, the court ruled that mail-in ballots in the state can only be counted if they arrive on Election Day.
While the court did not provide a reason for this decision, as is normal in cases like this, some justices filed opinions including Brett Kavanaugh, who sparked controversy in his defense of his decision to strike down the extension.
“Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election,” he wrote, arguing for the importance of deadlines. “And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.”
Many condemned the justice, accusing him of issuing a shockingly partisan opinion and arguing that the situation he detailed would not be considered “flipping” the election, including Justice Elana Kagan, who took aim at Kavanaugh’s argument here in a footnote in her own opinion.
“But there are no results to ‘flip’ until all valid votes are counted,” she wrote. “And nothing could be more ‘suspicio[us]’ or ‘improp[er]’ than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is to disserve the electoral process.”
Some also pointed out the fallacy in Kavanaugh’s argument that mail-in ballots that arrive after election day will change the outcome that a majority of voters wanted.
“If Trump leads by 10 votes on Nov. 3 but 6,000 ballots arrive the day after having been sent on Oct. 24, most of them preferring former vice president and Democratic nominee Joe Biden, Kavanaugh worries that this constitutes an unfair rejection of the will of the public,” The Post wrote.
Others still argued that Kavanaugh’s opinion is especially concerning given the fact that currently, election officials in at least 18 states and Washington, D.C., do count ballots that arrive after Election Day.
“In these states, there is no result to ‘flip’ because there is no result to overturn until all valid ballots are counted,” Slate reported, noting that Kavanaugh’s opinion echoes false claims repeatedly made by President Donald Trump about absentee voting.
In fact, early that same day, the president posted a tweet that mirrored the justices’ argument almost exactly.
“Big problems and discrepancies with Mail In Ballots all over the USA,” he wrote. “Must have final total on November 3rd.”
The post was quickly flagged by Twitter as election-related misinformation.
See what others are saying: (The Washington Post) (Slate) (CNN)
House Passes Landmark Elections Bill To Expand Voting Rights
- House Democrats passed the For the People Act on Wednesday, a broad voting rights bill that aims to enhance voting rights.
- Among other measures, the legislation would mandate automatic voter registration, expand early and mail-in voting, restore voting rights to former felons, and impose new disclosure requirements for campaign donations and political advertising.
- Democrats say the act is necessary to ensure American’s right to vote, especially as state legislatures have proposed dozens of bills that would roll back voting access and consolidate GOP power.
- Republicans have argued that states, not the federal government, should decide how elections are run and claimed the new bill would lead to fraud that helps liberal candidates.
House Approves For the People Act
The U.S. House of Representatives passed a sweeping elections bill Tuesday that aims to significantly expand federal voting rights all over the country.
The bill, called the For the People Act, was proposed by Democrats and passed 220 to 210 almost entirely along party lines. According to reports, if signed into law, it would be the most comprehensive enhancement of federal protections since the 1960s.
The bill contains a wide variety of provisions, but the most significant fall into two broader categories: creating uniform standards for voting and increasing financial transparency.
Regarding the voting rights standards, among other things, the bill would:
- Weaken restrictive state voter ID laws.
- Mandate that state governments use existing records to automatically register voters.
- Guarantee no-excuse mail voting and at least 15 days of early voting for all federal elections.
- Make it harder to purge voter rolls.
- Restore voting rights to former felons.
- End partisan gerrymandering by requiring states to appoint independent commissions to draw congressional districts.
As for what the bill aims to do regarding expanding transparency, it would:
- Impose new disclosure requirements for “dark money” donations used to finance campaigns.
- Create a public financing option for congressional campaigns.
- Require presidential candidates to disclose their tax returns.
- Require tech platforms to disclose political advertising information.
Arguments For And Against
Democrats have argued that this legislation is essential to protecting and ensuring the right to vote.
The task, they say, is especially important now because Republican-controlled state legislatures have proposed dozens of bills that would roll back voting access as a reaction to former President Donald Trump’s loss and efforts to undermine the election. Many Republicans have used Trump’s false claims about voter fraud to promote their legislation.
Democrats have said these bills are a very transparent attempt by Republicans to consolidate their power because they know they benefit from lower voter turnout, and thus their strategy to win more races is just simply to make voting harder. As a result, Democrats have said the For the People Act is key to combatting these bills
“Everything is at stake,” House Speaker Nancy Pelosi (D-Ca.) said Wednesday. “We must win this race, this fight.”
Republicans, for their part, have argued that states, not the federal government, should make changes to how elections are run, and that the legislation would lead to fraud that benefits Democrats.
“House Democrats do not get to take their razor-thin majority — which voters just shrunk — and use it to steamroll states and localities to try and prevent themselves from losing even more seats next time,” Senate Minority Leader Mitch McConnell (R-Ky.) said in response to the bill’s passage.
However, many have disputed that claim by noting that there is no evidence of widespread fraud that helped Democrats in the last election. By contrast, there are years of evidence that Republicans do benefit from making it harder for people to vote and gerrymandering districts, a fact that McConnell himself seemed to acknowledge by implying that Democrats win more when voting rights are expanded.
Despite Republican objections, recent polls have found that most Americans support having more voter protections. According to a January survey by Data for Progress, 67% of Americans back the For the People Act, including a majority of Republicans.
Still, the legislation is all but doomed in the Senate, which struck down an almost identical version passed by the House in 2019. While Democrats technically have a majority now, the current 50-50 split will require a minimum of 10 Republicans to join forces with all 50 Democrats to avoid the 60-vote legislative filibuster.
See what others are saying: (The New York Times) (The Washington Post) (The Associated Press)
Texas Governor Will Reopen State “100%” and End Mask Mandate Against Expert Advice
- Texas Gov. Greg Abbott (R) said Tuesday that he was opening the state “100%” and ending the mask mandate starting March 10, against health guidance from federal officials.
- Abbott justified his decision by noting that nearly 6 million Texans have been vaccinated and hospitalizations are down in the state.
- Experts, however, pointed out that less than 2 million of the state’s 29 million residents are fully inoculated, and the CDC currently ranks Texas 48th for vaccination rates out of all 50 states.
- On Tuesday alone, governors in Mississippi, Louisiana, and Michigan as well as local leaders in Chicago and San Francisco also announced plans to ease COVID-19 restrictions.
Abbott Announces Major COVID Policy Changes
Starting March 10, Texas will no longer have a state-wide mask mandate or any coronavirus-related restrictions on businesses and facilities, Gov. Greg Abbott (R) announced Tuesday.
The move represents the most expansive reopening of any state and makes Texas the largest state to lift its public masking requirement. However, it also goes entirely against the recommendation of the nation’s top experts.
During a press conference Monday, Rochelle Walensky, the director for the Centers for Disease Control and Prevention warned leaders against rolling back restrictions. She cited the fact that the recent nation-wide decline in cases has been stalling and that there has been community spread of the new variants — three of which have been found in Texas, saying:
“With these new statistics, I am really worried about reports that more states are rolling back the exact public health measures we have recommended to protect people from COVID-19,” she said.
“Please hear me clearly: At this level of cases, with variants spreading, we stand to completely lose the hard-earned ground we have gained. These variants are a very real threat to our people and our progress,” she continued.
“Now is not the time to relax the critical safeguards that we know can stop the spread of covid-19 in our communities, not when we are so close.”
Conditions in Texas
While cases have been declining in Texas, like most of the country, there is still a lot of data that makes Abbott’s decision especially concerning.
According to The New York Times tracker, Texas still ranks within the top ten states with the highest weekly cases per capita, reporting a weekly average of just over 7,200. Texas also has more hot-spot counties than any other state, according to Business Insider’s analysis of the Times data, which found that 10 counties have reported more than 100 cases per 100,000 residents on average over the last week.
Notably, that number could be skewed because of the massive drop in the testing due to a recent storm that left millions without power and clean water. In fact, experts have warned that Texas could see more COVID cases in the fallout of the storm because people were forced to shelter together.
Abbott, however, did not focus on any of that in his announcement. Instead, he cited other metrics, noting that nearly 5.7 Texans have been vaccinated. He also pointed to declines in hospitalizations.
But both of these justifications are misleading. While it is true that Texas has vaccinated close to 6 million people, according to the CDC, less than 2 million out of 29 million state residents have received both doses needed to be considered fully inoculated.
Beyond that, the CDC’s latest vaccination report ranks Texas 48th in vaccination rates out of all 50 states. Part of that is tied to the lag the state faced because of the storm, but experts still say this just proves that the state needs to be focus on catching up and vaccinating more people instead of rolling back restrictions.
To that point, public health officials have also pushed back against Abbott’s use of declining hospitalization rates as a rationale for his reopening plans. They warned that current hospitalization declines are already slowing and could reverse, and that will only get worse with reopenings.
Other States Reopen
Texas, however, is not the only state that has rolled back restrictions lately, or even just in the past 24 hours.
On Tuesday alone, the governors of Louisiana and Michigan as well as the mayors of Chicago and San Francisco all announced that they would be easing some restrictions on businesses and/or the capacity at which they operate.
Right after Abbott’s announcement, Mississippi Gov. Tate Reeves (R) made a nearly identical one with an even shorter timeline. In a tweet, he said that starting Wednesday, he would lift all county mask mandates and allow businesses to “operate at full capacity without any state-imposed rules.”
The recent easing of restrictions is part of a broader trend — and not just in states that have Republican governors or large conservative populations.
While California Gov. Gavin Newsom (D) slammed Abbott’s move as “absolutely reckless,” he has also been widely condemned by leaders in his state for recently rolling back numerous restrictions.
Over the last few weeks, the Democratic governors of Virginia, North Carolina, and New York have all also lifted or otherwise modified regulations to make them less restrictive.
See what others are saying: (The New York Times) (The Dallas Morning News) (Business Insider)
Georgia House Passes Sweeping Bill To Restrict Voting Access
- The Georgia House approved an election bill Monday that would impose new restrictions on absentee voting and provisional ballots, cut weekend early voting hours, and limit physical access to voting options, among other measures.
- Republicans proposed the bill after losing the Presidential and Senate races, arguing that it is necessary to restore confidence in the state’s elections and prevent fraud.
- Democrats have condemned the proposed law, noting that Republicans created the distrust by spreading former President Trump’s false claims about election fraud even when top GOP officials in the state said there was no evidence. They also accused them of trying to suppress voters, particularly Black residents.
Georgia House Approves Election Bill
Republicans in the Georgia House passed a sweeping bill Monday that would significantly roll back voting access in the state.
The bill, which was proposed by Republicans who want to impose new restrictions after losing the election, was passed 97-72 along party lines. If signed into law, among other things, the legislation would:
- Require a photo ID for absentee voting.
- Cut the amount of time voters have to request an absentee ballot.
- Restrict ballot drop box locations to inside early voting locations.
- Shorten Georgia’s runoff election period.
- Impose more strict regulations on provisional ballots.
- Prevent the governments from mailing out unsolicited absentee ballot applications to registered voters.
- Ban nonprofit organizations from helping fund elections.
- Almost entirely cut early voting busses that are key to transport people to the polls.
- Prohibit food and drinks from being distributed to voters waiting in long lines.
- Limit early voting hours on weekends.
The last provision is one of the most controversial because it would include limiting the get-out-the-vote campaign known as “souls to the polls,” which is widely used by Black churches. That initiative has been credited with mobilizing Black voters all over the country since the Jim Crow era. The proposed law would limit events to just one Sunday during the early voting period, which would also be cut short.
Arguments For And Against The Bill
The Republicans who have pushed for the bill argue that it is necessary to restore public confidence in Georgia’s elections and help prevent fraud.
But Democrats, voting rights organizations, and protestors who have gathered in front of the capitol to demonstrate against the bill have pointed out that it was Republicans who hurt public trust in the state’s elections by repeating former President Donald Trump’s false claims about election fraud.
Meanwhile, numerous top Republican officials — including Georgia Secretary of State Brad Raffensberger — have said time and time again that there was no evidence of fraud in the 2020 elections.
Though notably, many Republican state legislators who supported the former president’s false that massive fraud had occurred in their states never contested the results of their own elections, according to the Atlanta Journal-Constitution.
Democrats have also said that the bill is just the Republican’s latest, transparent attempt to drive down turnout and suppress voters — particularly Black voters who helped Democrat’s wins in the state and take the Senate — rather than actually increase election security.
As far as what happens next, the bill will head to the state Senate, which is also Republican-controlled, and already considering its own elections bill that would end no-excuse absentee voting, among other things.
From there, it will go to Gov. Brian Kemp (R), who will likely sympathetic to the cause.
Notably, this legislation the only election bill like this being proposed in state capitols around the country or even in Georgia.
According to the Brennan Center for Justice, legislators in 43 states are considering more than 250 bills that would create impediments to voting. Dozens of those proposals exist in Georgia alone.