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The Barrett factor: Will President Trump’s Supreme Court nominee help decide the election?

If confirmed, Barrett could become a deciding voice if this November’s presidential election is contested in the courts

In this May 3, 2020,photo, the setting sun shines on the Supreme Court building on Capitol Hill in Washington.
Patrick Semansky, Associated Press

On Saturday, President Donald Trump announced that Amy Coney Barrett, a judge for the U.S. Court of Appeals for the 7th Circuit, would be the nominee to replace late Justice Ruth Bader Ginsburg on the Supreme Court. A speedy confirmation, expected from a Republican-controlled Senate, would deliver a 6-3 conservative majority that could influence the court’s rulings for decades.

One of her first decisions could help decide the nation’s immediate future. In the event of a contested election, the Supreme Court could be called on to decide on crucial balloting issues, especially in swing states — such as a mail-in voting procedure Republicans are currently fighting in Pennsylvania.

The facts

  • Polls show Joe Biden currently leading the 2020 presidential race, but experts note the strong possibility of a tight margin, particularly in battleground states. The situation evokes the 2000 race between George W. Bush and Al Gore, which ended after the Supreme Court ruled by a 5-4 margin to cease the counting of disputed votes in Florida.
  • Trump has suggested the election could be decided by the court, and his recent resistance to conceding or committing to a peaceful transition of power raises the possibility that the election could remain contentious even after votes are cast.
  • The president continues to dispute the reliability of mail-in voting, as states lean on the alternative in an attempt to manage elections during a viral pandemic (evidence indicates that mail-in voting is reliable and that voting fraud in general is rare).
  • All 50 states and the District of Columbia allow some form of mail-in voting, but the details vary. Some are sending mail-in ballots to all voters whether or not they’ve requested them. About half require the ballot to be received by Election Day; the rest allow a grace period.
  • Earlier this month, ruling on a lawsuit brought by state Democrats, the Pennsylvania Supreme Court extended the mail-in voting deadline, ruling that ballots postmarked before the election will be counted if they are received in the three days after the polls close. The ruling also declared ballot drop boxes legal (Trump has opposed them). It was one of a number of similar battles at the lower levels of the judicial system, according to The New York Times.
  • Republicans in Pennsylvania — a swing state — moved quickly to request a stay while they petition the U.S. Supreme Court to hear the case, arguing that “the decision violates federal law, which establishes ‘the Tuesday next after the 1st Monday in November’ as a single Federal Election Day.”

Barrett’s perspective

As a judge, Barrett doesn’t have an extensive record on voting-rights cases, though Politico points to a 2019 lawsuit that argued the threshold of signatures to appear on the ballot for sheriff of Cook County, Illinois, was higher than that of the state. Barrett opined that the need for orderly election processes justified the requirement. But if confirmed, she will bolster a conservative majority on the court, which has rolled back numerous voting-rights protections in recent years.

The decision

Some analysts worry that if the election’s outcome is decided by a Supreme Court with three Trump appointees, it could undermine public faith in the institution. But it is also possible that Barrett could recuse herself from a case that would decide the election. Democrats are likely to request such a recusal, but there is no enforceable law requiring Barrett to recuse, and precedent suggests that “aside from direct financial and personal conflicts, (justices) rarely do so,” according to Reuters.

Key quote

“I think this will end up in the Supreme Court. And I think it’s very important we have nine justices.” — Trump on the possibility of a contested election