• Sun. Apr 11th, 2021


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In Voting Cases, Chief Justice Roberts Is Alone but in Control

WASHINGTON — In a little over a week, the Supreme Court issued five sets of orders in election cases. In three of them, Democrats prevailed.

Chief Justice John G. Roberts Jr. wrote an opinion in only one of the cases, and it was only a paragraph long. It sketched out a distinction that no other justice endorsed. But that distinction can explain every one of the court’s orders.

The distinction pressed by the chief justice was this: Federal courts should not change voting procedures enacted by state legislatures, and they also should not step in when state courts or agencies change those procedures.

The something-for-both-sides approach is broadly similar to Chief Justice Roberts’s recent record, in which he voted with the court’s liberals in cases on gay rights, immigration and abortion; joined the court’s conservatives in major cases on religion; and wrote the majority opinions in cases on subpoenas seeking President Trump’s financial records that rejected his broadest claims but did not require immediate disclosures.

Chief Justice Roberts’s deft judicial work last term meant that he was in the majority in divided decisions at a higher rate than any chief justice since at least 1953. Scholars debated whether that was evidence of principle or pragmatism, noting that the chief justice has tried hard to shield the court from charges that it is a political body.

In the election cases, too, the chief justice’s rationale staked out a middle ground, one that was consistent with conservative ideas about federalism even as the court’s other members seemed to take all-or-nothing approaches. The court’s more liberal members said the right to vote was important enough to justify letting federal judges alter state election rules. And its more conservative ones said the Constitution prohibits all changes to voting rules enacted by state legislatures, even ones supported by state courts or state officials.

“Roberts is desperately trying to preserve the court as above the fray by staying out of the fray — and when I say the court, I mean the federal courts generally,” said Michael C. Dorf, a law professor at Cornell.

“He is the only one who subscribes to his particular view,” he said. “It’s hard to lead the court when the legal principle that most appeals to you is idiosyncratic.”

Still, for now, at least, Chief Justice Roberts has pulled off an extraordinary balancing act. He voted with the majority to reinstate an Election Day deadline for absentee voting in Wisconsin and to bar curbside voting in Alabama, rejecting rulings from federal judges who had sought to make voting easier in those states. But he voted to allow, for now at least, longer deadlines for absentee ballots in Pennsylvania and North Carolina ordered by a state court and a state election board.

Among the messages these positions sent was one of nonpartisanship and of not endorsing Mr. Trump’s attacks on voting by mail.

Yet Chief Justice Roberts’s strategy may not endure, particularly as Justice Amy Coney Barrett did not take part in any of the five sets of rulings, two of which were issued after she joined the court on Tuesday.

A court spokeswoman said Justice Barrett did not participate in the cases because she was unable to review the parties’ filings in time.

The voting orders may represent Chief Justice Roberts’s last hurrah. Once Justice Barrett starts voting, she is expected to join the court’s more conservative members, thrusting the chief justice out of his spot at the court’s ideological center. That could make Justice Brett M. Kavanaugh the median justice.

But Justice Kavanaugh is himself an intriguing work in progress whose votes in the recent election cases are hard to reconcile.

Two blocs of justices, on the other hand, seem solidly committed to their views. The three Democratic appointees — Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — have backed efforts to make it easier to vote during a pandemic, whether called for by federal judges, state judges or state officials.

The three most conservative members of the court — Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — take the opposite view.

“The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules,” Justice Gorsuch wrote on Monday, in a concurring opinion in a 5-to-3 ruling that refused to revive a federal judge’s order that would have extended the deadline for receiving absentee ballots in Wisconsin.

That leaves Justice Kavanaugh. He joined Justice Gorsuch’s opinion in the Wisconsin case and wrote his own concurring opinion, one that has attracted considerable attention for echoing the president’s criticism of mail-in voting, for its citation of Bush v. Gore and for a factual error about voting procedures in Vermont that he corrected on Wednesday.

In his opinion in the Wisconsin case, Justice Kavanaugh devoted a long footnote to the central role state legislatures play in setting election rules. “The Constitution,” he wrote, “requires federal courts to ensure that state courts do not rewrite state election laws.”

Similarly, Justice Kavanaugh voted with the three-member conservative bloc last week when the court deadlocked over whether to block a three-day extension of the deadline for receiving absentee ballots in Pennsylvania, which left a ruling from the state’s highest court ordering the extension in place. Neither side gave reasons, but Justice Kavanaugh’s side seemed prepared to override the state court in favor of the state legislature.

Yet on Wednesday, when the court issued two sets of orders at least temporarily aiding Democrats in Pennsylvania and North Carolina, Justice Kavanaugh was silent even as the three-member conservative bloc objected. One order refused a plea from Pennsylvania Republicans to put their second challenge to the three-day extension on an extraordinarily fast track that could have yielded a decision before Election Day.

Justice Alito, joined by Justices Thomas and Gorsuch, echoed what Justice Kavanaugh had written just two days earlier in the Wisconsin case.

“The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless,” Justice Alito wrote, “if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.”

Nor did Justice Kavanaugh note a dissent when the Supreme Court on both Wednesday and Thursday allowed North Carolina’s board of elections to extend the deadline for receiving ballots to nine days after Election Day, up from the three set by the state legislature. The same three conservative justices objected.

What explains Justice Kavanaugh’s seeming inconsistency? Daniel Epps, a law professor at Washington University in St. Louis, had a couple of theories.

“He may have been surprised by how much criticism his Wisconsin opinion got and decided to turn down the temperature a little bit,” Professor Epps said.

Or perhaps, he added, Justice Kavanaugh was playing a long game in his Wisconsin opinion, declining to change the status quo just days before Election Day but laying down “a marker concerning his views of the court’s power to step in and decide state-law questions in elections cases.”

“He wanted to do that now, because of the possibility that such an issue might arise and prove critical to the election if, say, everything hinges on Pennsylvania,” Professor Epps said. “By stating his views now, he’s avoiding the possibility that people will say that he just agreed with that position later on after it turned out to be critical to Trump’s re-election.”

There may be a practical explanation for the court’s most recent actions, according to Rebecca Green, a law professor at William & Mary.

“Members of the court are clearly skeptical of federal and state court attempts to futz with state legislative design for how elections should be run,” she said. “But we are voting in a pandemic and November 3 is nigh. The court is highly conscious of not upsetting the process at this very late date. Once we are past Election Day, the court seems poised to defend the role of state legislatures if it comes to that.”