Wartime Consiglieres

This should terrify the hell out of you:

After a very long delay in an emergency election case, the shorthanded United States Supreme Court came to a 4–4 tie in an election law case out of Pennsylvania on Monday evening. While a tie result that leaves the lower court ruling standing is a clear short-term win for Democrats in making it easier to vote in the Keystone State in November, Republicans could end up with a much bigger victory if there is any post-election Trump v. Biden litigation. If Amy Coney Barrett joins the court next week as expected, she could be the deciding vote in any case that challenges election or recount rules set out by a Democratic-dominated state Supreme Court in a place like Pennsylvania or North Carolina in opposition to those states’ Republican legislatures.

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This 4–4 tie is doubly troubling. First, it means that we have no guidance from the court as to when and whether a state Supreme Court can rely on a state Constitution when it expands or changes state voting rules in a presidential election. Even though Democrats opposed the stay sought by Republicans in the case, they begged the Court to fully take the case and give an explanation as to the scope of state court power in this case. This lack of guidance could be a huge problem in the two battleground states—North Carolina and Pennsylvania—with Democratic state Supreme Courts and Republican legislatures who could battle over any post-election voting rules.

Further, it shows that President Trump was right about the role that Judge Amy Coney Barrett could play in any post-election litigation over the winner of the November election. He has said he wants Barrett on the Supreme Court to decide such a case. I earlier expressed skepticism that Barrett would act as a tie-breaker in such circumstances, reasoning that Chief Justice Roberts would not want to put her in this position. But I’ve now reconsidered. Judge Barrett is a deeply conservative judge, much like Justices Alito, Gorsuch, Kavanaugh, and Thomas who voted Monday to grant a stay. She easily could have been a fifth vote hear to side with the broad power of state legislatures against state Supreme Courts seeking to protect voting rights under the state constitution.

If you thought the stakes of a Barrett confirmation couldn’t get any higher, they just did

If this election is decided by a Trump v. Biden, it will hang fully on every elite legal liberal who vouched for any of the four undistinguished partisan hacks who voted to issue a stay today.