Could Justice Amy Coney Barrett deliver the election to Trump?

Amy Coney Barrett is likely to be confirmed to the U.S. Supreme Court today. Before she eviscerates ObamaCare, weakens economic regulation and scuppers Roe v. Wade, she will have an immediate task — to help determine whether President Trump gets reelected. We are about to see just how partisan our justice system has become. 

It is trite law that a federal court will not change election rules during the period of time just prior to an election because doing so could confuse voters and create problems for officials administering the election. The principle takes its name from the Supreme Court’s 2006 decision in Purcell v. Gonzalez.

Eight years later, in Veasey v. Perry, the court permitted a new Texas voter identification law to remain in effect for the November election. The decision was viewed by some as voter suppression. The district court had found the new law unconstitutional, and the court of appeals stayed its hand. The Supreme Court reversed the decision, but the late Justice Ruth Bader Ginsburg dissented, reasoning that the majority had ignored the Purcell principle. According to Ginsburg, the district court’s decision would not confuse voters or cause much disruption to Texas’s electoral process. The decision merely would have reinstated familiar election rules in place for the previous 10 years, prior to adoption of the new law.

This year, in a 5-4 ruling on absentee voting in Republican National Committee v. Democratic National Committee, all of the justices relied on Purcell. One day prior to Wisconsin’s April primary election, the court blocked a district court ruling issued five days before the election that extended the deadline for submitting absentee ballots in light of the COVID crisis. The district court based its decision on an immense backlog of timely absentee ballot requests due to concerns about voting in person during the coronavirus pandemic. 

Citing Purcell and Veasey, the court found that the lower court should not have changed the election rules so close to the election. According to the five-justice majority, permitting absentee ballots to be cast after the polls closed on Election Day would “fundamentally alter the nature of the election.” The court reasoned, moreover, that extending the time might prevent the state from announcing election results, thus creating the kind of confusion cautioned against in Purcell.

In a dissenting opinion joined by the liberal Justices Breyer, Sotomayor and Kagan, Ginsburg wrote that the Purcell principle should have prevented the Supreme Court from intervening so late in the process. She noted that Wisconsin election officials had already spent several days developing procedures and informing voters of the district court’s requirements. In Ginsburg’s view, the majority’s decision was creating confusion for voters and problems for election officials, while also not considering that the district court had ruled in the context of a public health emergency.

Last Monday, the Supreme Court tied 4-4 over the Pennsylvania court’s ruling allowing mail-in ballots to be counted that were postmarked before Election Day but received up to three days after November 3. Chief Justice Roberts voted with the three liberals to create the tie vote. When the court is deadlocked, it leaves the decision of the lower court undisturbed. Chalk one up for the Democrats. 

As reported in The Hill last Friday, the Democrats won another victory in Pennsylvania. The Trump campaign had wanted to impose an additional requirement in mail-in ballots, that the signature on the ballot must match the signature on the voter’s application, thus turning election clerks into handwriting analysts. The Pennsylvania Supreme Court, in a decision concurred in unanimously by Republican and Democratic judges, ruled that mail ballots cannot be discarded based on a perceived mismatch between signatures appearing on the voter’s application to vote and the actual ballot.

There is no provision of Pennsylvania state law that requires such a comparison. The court reasoned that the Pennsylvania legislature knew how to provide for such a requirement had it wanted to. It didn’t. The matching requirement is an obvious contrivance to suppress the vote, and create problems for officials administering the election. If ever there was a case where the contrary outcome would change the rules just before an election, and create administrative problems, this was it. The Purcell principle should govern, but Trump has taken the case to the Supreme Court.

Pennsylvania is a key state. It has 20 electoral votes. The presidential election may turn on its result. That is why both candidates have campaigned there so hard in recent days. In 2016, Trump won the state over Hillary Clinton by 0.72 percent, the narrowest margin in a presidential election for the state in 176 years. This year in Pennsylvania, Biden is up in the polls by five points. More than 1.4 million Pennsylvanians have already voted. It is too late to change the rules.  

But consider this one. If Amy Coney Barrett is confirmed and seated before Election Day, there will be no chance of a tie unless she recuses herself. There is every reason to believe that she will not recuse herself. Recusal is indicated when the judge’s impartiality may be fairly questioned. But that venerable principle may not stop her.

Who will question her impartiality? Her conservative colleagues? Half the country? The other half will think she is free to vote. I predict that she will vote. 

That means there is a good chance that the Supreme Court will, by a vote of 5-4, stay the count in Pennsylvania until thousands of signature-mismatched ballots are sorted out and disqualified even though the Pennsylvania Supreme Court ruling doesn’t change anything. It will be an administrative nightmare rivaling Florida’s infamous hanging chads in 2000.

The partisan views of Ginsburg and Barrett could not be more diametrically opposed. Ginsburg’s untimely death may ensure Trump’s reelection.

James Madison, one of the principal authors of the Constitution, believed that allowing the judiciary to choose the presidential electors “was out of the question.” But the new conservative majority on the court is sure to disagree. We may be on the road to having a president who is not elected by the will of the people, but by unelected judges.

James D. Zirin, a former federal prosecutor, is the author of “Plaintiff in Chief—A Portrait of Donald Trump in 3500 Lawsuits.”