Concerns about courts won’t end with today’s election

Will we know election results by tomorrow morning?

The answer for most Idaho elections is yes. Voters must have voted–or be in line to vote–by 8 p.m. tonight.

The presidential election, however, is different. Twenty-one states will accept ballots that arrive later. Seven states have cut off dates between Nov. 13 and 17.

Justice Kavanaugh stated that Election Day deadlines are meant to avoid chaos and accusations of cheating that would come if late ballots “flip the results of an election.” 

Justice Elena Kagan replied, “There are no results to ‘flip’ until all valid votes are counted.”

There were lawsuits over this–Republicans objected to counting late results, and Democrats, to not counting them. Over all, the Supreme Court supported the state governments’ right to decide. 

After all, one of the strengths of the American system is allowing states to try a variety of procedures.

 I was worried when the Court allowed the Texas governor to limit ballot deposit boxes to one per county. Harris County is nearly the size of Delaware and has four times the population.  

But the Harris County clerk opened 21 early voting locations and had some open for 24 hours during the final days. Voters had options.   

There were probably more than 500 lawsuits over the election process this year. The Supreme Court didn’t decide on Reclaim Idaho’s request for more time to gather initiative signatures because lower courts had made conflicting decisions, and it wants to consider all arguments together.  

When this election is over, the Supreme Court will remain a major issue. For years the Court has usually had a 4-4 split with one swing voter. We now have a 5-3 split so Chief Justice Roberts’ swing vote may have no influence.  

Prior to 2017 justices generally had to be approved by 60% or more of the Senate. This pressured presidents to appoint justices that appealed to both Republicans and Democrats.  Justice Ginsberg received 93 votes in the Senate; Stephen Beyer, the other Clinton appointee, 87. Chief Justice Roberts, appointed by George W. Bush, received 78. Obama’s two appointees, Sonia Sotomeyer and Elena Kagan, received 68 and 63. 

But Senate Majority leader Mitch McConnell changed the rules in 2017. President Trump’s nominees were all approved by 54 votes or less.  

With Trump’s appointees, the Court now has two Jews and six practicing Catholics. Justice Gorsuch was raised Catholic, but is now Episcopalian. (Only eight other Catholics have served in the Court’s history.) 

Next Tuesday the Supreme Court begins hearings on California v. Texas. The question is whether the entire Affordable Care Act is invalid since Congress eliminated the “individual mandate” in 2017.  

If the Court throws the ACA out–as Republican officials are advocating–millions of Americans will lose their health insurance because of pre-existing conditions and others simply won’t be able to afford coverage.

Court decisions on abortion rights will follow. According to Planned Parenthood, there were at least 16 abortion cases before Federal appeals courts in June. Scholars believe the Court is more likely to allow states to limit abortions out of existence rather than to openly overthrow Roe v. Wade. A Tennessee law, for example, would outlaw abortions after six weeks even though procedures other than pills are dangerous for women before that time.  

Such decisions–and the public reaction to them–will determine whether the American people retain their trust in the Court. I believe the majority of Americans don’t want people dying without health care or mothers in jail because they couldn’t face having one more child. 

None of five or six options for limiting the Court sound good today, but that may change. 

Published by Judy Ferro

Judy Ferro is communication director for the 2C Dems and a columnist for the Idaho Press.

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