by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Republican-controlled legislatures in battleground states are likely to play a deciding role in any post-Election Day legal disputes.
It’s hard to anticipate just what a post-election legal fight will involve. However, many pre-election lawsuits to reach the Supreme Court have involved a particular fault-line: On the one side is a state legislature, which sets the rules and procedures for the election; and on the other is a state court, which relaxes or alters those procedures, citing other state law sources and the coronavirus pandemic as justification. If that pattern holds, President Donald Trump has reason for optimism.
So far, a short-handed Supreme Court has sided with state judges in such cases, allowing their late-breaking adjustments over the objections of GOP lawmakers and the Trump campaign. Justice Amy Coney Barrett, however, may hold a fifth vote in favor of the GOP-controlled legislatures. Republicans control both legislative chambers in such critical states as Arizona, Florida, Pennsylvania, North Carolina, and Wisconsin. …
… Had Barrett been on the Court in late September, she might have provided a fifth vote to maintain the original Election Day deadline. Her participation in a future case could mean that election rules written by GOP lawmakers will determine scuffles over recounts or tardy absentee ballots. …
… Barrett managed to duck the Pennsylvania appeal given the timing, and she did not participate in a conference the justices held Friday to discuss pending petitions. A Court spokeswoman said Barrett has been using her time to get up to speed on the cases the justices will hear in the coming days, which include weighty disputes over health care, LGBT rights, and religious freedom. Whether or not the calendar may again be an ally for Barrett if a politically fraught appeal reaches the justices is unclear.