Supreme Court issues flurry of last-minute election orders

North Carolina, yes. Pennsylvania, yes. Wisconsin, no. That’s how the Supreme Court has answered questions in recent days about an extended timeline for receiving and counting ballots in those states. In each case, Democrats backed the extensions and Republicans opposed them. All three states have Democratic governors and legislatures controlled by the GOP. At first blush, the difference in the outcomes at the Supreme Court seems odd because the high court typically takes up issues to harmonize the rules across the country. But elections are largely governed by states, and the rules differ from one state to the next. A big asterisk: These cases are being dealt with on an emergency basis in which the court issues orders that either block or keep in place a lower-court ruling. But there is almost never an explanation of the majority’s rationale, though individual justices sometimes write opinions that partially explain the matter There also is a difference in how the justices act based on whether they are ruling on a lawsuit that began in state or federal court. Conservative justices who hold a majority on the Supreme Court object to what they see as intrusions by federal judges who order last-minute changes to state election rules, even in the middle of the coronavirus pandemic. The power to alter absentee ballot deadlines and other voting issues rests with state legislatures, not federal courts, according to the conservative justices. The court also is divided, but so far has been willing to allow state courts interpreting their own state constitutions to play more of a role than their federal counterparts. Last week, four conservative justices would have put on hold a Pennsylvania Supreme Court ruling allowing three additional days to receive and count mailed ballots. Three justices in Wednesday’s order about North Carolina’s absentee ballots would have blocked a six-day extension. The justices did not finally resolve the legal issues involved, but they could do so after the election. A more thorough examination could come either in a post-election challenge that could determine the presidential winner if, for example, Pennsylvania proves critical to the national outcome, or in a less tense setting that might not affect the 2020 vote, but would apply in the future.

Despite rhetoric, GOP has supported packing state courts

Republican claims that Democrats would expand the U.S. Supreme Court to undercut the conservative majority if they win the presidency and control of Congress has a familiar ring. It's a tactic the GOP already has employed in recent years with state supreme courts when they have controlled all levers of state political power. Republican governors in Arizona and Georgia have signed bills passed by GOP-dominated legislatures to expand the number of seats on their states’ respective high courts. In Iowa, the Republican governor gained greater leverage over the commission that names judicial nominees. “The arguments being advanced now by Republican leaders — that this is an affront to separation of powers, that this is a way of delegitimizing courts — those don’t seem to be holding at the state level,” said Marin Levy, a law professor at Duke University who has written about efforts to expand state high courts. President Donald Trump and the GOP have seized on the issue in the final weeks of the presidential race, arguing that Democratic nominee Joe Biden would push a Democratic Congress to increase the number of seats on the Supreme Court and fill those with liberal justices. Some on the left have floated the idea in the wake of Republicans' rush to confirm Amy Coney Barrett to fill the seat of Justice Ruth Bader Ginsburg, a liberal icon who died last month. Biden, for his part, has said he's not a fan of so-called “court packing,” and it's far from certain that Democrats can win back the majority in the U.S. Senate. Arizona's governor, Republican Doug Ducey, said he opposes adding seats to the U.S. Supreme Court. "We shouldn’t be changing our institutions,” he told reporters recently. Yet Ducey signed a bill that did just that at the state level in 2016, expanding the Arizona Supreme Court from five seats to seven. As a result, Ducey has appointed more judges than any other governor in the state's history. Ducey said the situations are not the same because Arizona’s system for selecting judges allows him to appoint them only from a list sent to him by a commission that interviews and vets candidates.

GOP’s Supreme Court push may box in Cory Gardner

Six years ago, Colorado Democrats failed to convince enough voters to reject Cory Gardner’s bid for the U.S. Senate. Their warnings that the Republican could, someday, be the confirming vote for a Supreme Court justice who could overturn Roe v. Wade proved ineffective. Now Gardner, 46, is poised to be one of the votes that places President Donald Trump’s nominee Amy Coney Barrett on the Supreme Court just before the election. And Democrats think they have the votes to punish him for it. Gardner has long been considered both one of the nimblest Republican politicians and also one of the most vulnerable. His 2014 run was praised as the best Senate campaign that year for defusing Democratic attacks about his role in a “war on women” and staying on message. But he’s also a Republican in a state that has shifted sharply to Democrats since Trump was elected — the president lost the state by 5% in 2016 and then Democrats won the governorship by 11% and every other statewide race in 2018. Gardner has struggled to escape the president’s long shadow. “Luck and timing are everything in politics, and Cory’s on the wrong end of all these elements,” said Mike Stratton, a Democratic strategist who advised the man Gardner ousted in 2014, Sen. Mark Udall. Gardner is now up against John Hickenlooper, a popular former two-term governor of Colorado and Denver mayor. Gardner’s reelection hinges on convincing the state’s crucial slice of independent voters he’s a nonpartisan problem-solver who will look out for the state. On the campaign trail, he’s emphasized his work on state-centric, uncontroversial issues — moving the Bureau of Land Management headquarters to western Colorado, co-writing a bill to fund maintenance at national parks and creating a national suicide prevention number. “I vote 100% of the time for the people of Colorado,” Gardner said during a debate Friday evening.. But Gardner’s also been a reliable vote for his party under Trump. The president praised Gardner for being on his side “100% of the time” at a rally in February, and voters got another reminder of that when Gardner said he supports Barrett’s nomination. Republicans acknowledge that may be enough to prevent him from escaping Trump’s downward pull. “I’m saying a prayer he doesn’t get swept out by our president,” said Linda Heintz, 71, a registered Republican in suburban Denver who plans to vote early for Gardner. Heintz still hasn’t decided whether she can vote for Trump but figured Gardner was a no-brainer. “He’s done nothing to not deserve reelection,” she said, acknowledging she doesn’t think many others in the state agree with her view. Joan Kresek doesn’t. The 65-year-old graphic design professor is an independent-turned-Democrat who exemplifies Colorado’s transformation from a swing state into an increasingly blue bastion. “Cory Gardner is attached to Trump, whom I’m 100% against,” Kresek said, saying Gardner’s support for a rapid replacement to the late Justice Ruth Bader Ginsburg “is what he stands for.” GOP pollster David Flaherty noted that the Barrett nomination is especially difficult for Gardner. The independents he needs to win aren’t just non-partisan, they’re anti-partisanship, disliking even “the impression of partisan decision-making,” he said. Republicans’ push to confirm Barrett before the election, when they thwarted Democrats’ attempt at a less-rushed confirmation four years ago, is a tough sell.

Virus spreads on panel handling Supreme Court nomination

Two Republican members of the Senate Judiciary Committee have tested positive for the coronavirus, raising questions about the timing of Supreme Court confirmation hearings for Judge Amy Coney Barrett and whether additional senators may have been exposed. Senate Majority Leader Mitch McConnell declared the confirmation process was going “full steam ahead.” North Carolina Sen. Thom Tillis and Utah Sen. Mike Lee both said Friday that they had tested positive for the virus. Both had attended a ceremony for Barrett at the White House on Sept. 25 with President Donald Trump, who announced Friday that he had tested positive and was later hospitalized at Walter Reed National Military Medical Center. Lee, who did not wear a mask at the White House event, said he had “symptoms consistent with longtime allergies.” Tillis, who did wear a mask during the public portion of the event, said he had “mild symptoms.” Both said they would quarantine for 10 days — ending just before Barrett’s confirmation hearings begin on Oct. 12. The positive tests come as Senate Republicans are pushing to quickly confirm Barrett in the few weeks they have before the Nov. 3 election. There is little cushion in the schedule set out by Judiciary Committee Chairman Lindsey Graham and McConnell, who want to put a third Trump nominee on the court immediately in case they lose any of their power in the election. Democrats, many of whom have been critical of Barrett, seized on the virus announcements to call for a delay in the hearings. “We now have two members of the Senate Judiciary Committee who have tested positive for COVID, and there may be more,” tweeted Senate Democratic leader Chuck Schumer. “I wish my colleagues well. It is irresponsible and dangerous to move forward with a hearing, and there is absolutely no good reason to do so.” Several other members of the Judiciary panel attended the White House ceremony, including Missouri Sen. Josh Hawley, Nebraska Sen. Ben Sasse, Tennessee Sen. Marsha Blackburn and Idaho Sen. Mike Crapo. Blackburn said she tested negative after the event. Crapo said he “recently” had a negative test and a spokeswoman said he would be getting another one as soon as it could be arranged. A spokeswoman for Hawley said he was being tested Saturday, and the senator tweeted later that his coronavirus test came back negative. Sasse tested negative, but said in a statement that he would work remotely from his home state and undergo further testing due to his “close interaction with multiple infected individuals,” his office said. He said he planned to to return to Washington in time for the confirmation hearing.