When the Senate votes on Monday evening to confirm Judge Amy Coney Barrett to the United States Supreme Court, it will be just over a week before Election Day that will decide what both parties are portraying as the most important race in American history.
If Barrett is confirmed to become a member of the highest bench in the country – and, with Republicans easily having enough votes to confirm her, that seems to be a foregone conclusion – one of the first cases she could hear as a new Supreme Court justice could decide who wins the White House.
Courts at all levels have been deluged with cases relating to balloting in the run up to Election Day – and amid the ongoing coronavirus pandemic – but one in particular has garnered nation attention.
Republicans in the key battleground state of Pennsylvania want the Supreme Court to rule on whether ballots received after Election Day can be counted. With the state still very much up for grabs and its 20 Electoral College votes possibly being the key to who the country’s next president is, both Republicans and Democrats are heavily invested in what happens to those late-arriving ballots.
The Supreme Court justices split 4-4 last Monday over a Republican plea to undo a state court order and force elections officials to ignore absentee ballots received after Election Day, Nov. 3. The tie vote left the Pennsylvania court order in effect and allows mailed ballots to be counted if they are received by Nov. 6. Chief Justice John Roberts and his three liberal colleagues voted to leave the court order in place.
With the possibility of Barrett, a conservative jurist, joining the bench and giving the Court a 6-3 conservative majority, Republicans are hopeful that the Supreme Court would rule in favor of ignoring the ballots received after Election Day.
Democrats, on the other hand, are decrying Barrett’s confirmation as a political act by President Trump to help him maintain the White House in a race that shows him consistently losing in the polls and as “voter suppression” tactic.
“One more vote, provided by a hard-right, Trump-nominated justice, could be the difference between voting rights and voting suppression,” Senate Democratic leader Chuck Schumer of New York said on Tuesday.
Trump already has signaled one reason for Barrett’s speedy nomination, just eight days after Justice Ruth Bader Ginsburg’s death, was to have her confirmed and installed on the court in time for any election lawsuit that might reach the justices.
“I think it's better if you go before the election because I think this scam that the Democrats are pulling, it’s a scam, this scam will be before the United States Supreme Court," Trump said shortly after the death of Justice Ruth Bader Ginsburg last month. "And I think having a 4-4 situation is not a good situation. If you get that. I don’t know that you’d get that. I think it should be eight-to-nothing or nine-to-nothing, but just in case it would be more political than it should be."
The court’s conservatives, Roberts included, have regularly sided with state officials who object when a federal court relaxes election rules, even if the changes arise from the coronavirus pandemic.
At the same time, the Supreme Court generally won’t disturb state court rulings that are rooted in state law.
But civil rights lawyers and election law experts said the vote in the Pennsylvania case indicates at least four conservatives may be willing to look at state court election-related decisions in a way that calls to mind Bush v. Gore.
“Based on Judge Barrett’s record, there is every reason to believe that she would have been a fifth vote in favor of the Supreme Court overstepping its bounds and interfering with a non-federal issue that would have jeopardized voter access,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. The group opposes Barrett’s confirmation.
Pennsylvania Republicans relied in part on an opinion from Justice Clarence Thomas and two other conservative justices in Bush v. Gore to argue that the Supreme Court should get involved in the case because the state court had improperly taken powers given by the U.S. Constitution to state lawmakers when it comes to presidential elections. The court ruled for Bush on other grounds, that ballots were being handled differently across the state in violation of the Constitution’s guarantee of equal protection.
The Senate on Sunday voted 51-48 to limit debate on the Supreme Court nomination of Judge Amy Coney Barrett, setting up a vote on her confirmation for Monday evening.
Sunday's vote limited debate over President Trump's court appointee to 30 hours, meaning the full Senate will be able to hold a confirmation vote Monday beginning at approximately 7:26 p.m. ET.
Two Republicans voted against ending debate, Sens. Susan Collins, R-Maine., and Lisa Murkowski, R-Alaska. Murkowski has, however, indicated that she will vote to confirm Barrett.
Previously, Supreme Court justices needed to clear a 60-vote threshold to advance to the high court, a tradition that forced nominees to win bipartisan support. But Senate Majority Leader Mitch McConnell, R-Ky., changed the standard in 2017 to allow for a simple majority, a move that allowed for the confirmation of President Trump's previous two nominees, Justices Neil Gorsuch and Brett Kavanaugh.
Fox News’ Ronn Blitzer and The Associated Press contributed to this report.