Dems: SCOTUS Election Case Tie Ominous 10/21 06:07

   With Amy Coney Barrett expected to join the Supreme Court as early as next 
week, the court's action in a Pennsylvania voting case has heightened fears 
among Democrats about the court being asked to decide a post-election dispute 
and with it, the winner of the White House.

   WASHINGTON (AP) -- With Amy Coney Barrett expected to join the Supreme Court 
as early as next week, the court's action in a Pennsylvania voting case has 
heightened fears among Democrats about the court being asked to decide a 
post-election dispute and with it, the winner of the White House.

   The justices split 4-4 Monday over a Republican plea to undo a state court 
order and force elections officials to ignore absentee ballots received after 
Election Day, Nov. 3. The tie vote left the Pennsylvania court order in effect 
and allows mailed ballots to be counted if they are received by Nov. 6. Chief 
Justice John Roberts and his three liberal colleagues voted to leave the court 
order in place.

   The four conservative members of the court who would have granted the GOP's 
request are likely to be joined soon by Barrett. That's a potential majority, 
even without Roberts, in any election-related dispute, whether from 
Pennsylvania or any other battleground state where mailed-in ballots or a 
recount fight could decide the winner.

   "One more vote, provided by a hard-right, Trump-nominated justice, could be 
the difference between voting rights and voting suppression," Senate Democratic 
leader Chuck Schumer of New York said Tuesday.

   President Donald Trump already has signaled one reason for Barrett's speedy 
nomination, just eight days after Justice Ruth Bader Ginsburg's death, was to 
have her confirmed and installed on the court in time for any election lawsuit 
that might reach the justices.

   The last time that happened was in 2000, when the court effectively decided 
the presidential election in favor of George W. Bush by a 5-4 vote.

   If nothing else, the split vote Monday strongly suggested there is not 
likely to be the requisite five votes to upend a federal appeals court order 
that has blocked a six-day extension of the time to receive and count absentee 
ballots in Wisconsin. That case is pending at the Supreme Court.

   The court's conservatives, Roberts included, have regularly sided with state 
officials who object when a federal court relaxes election rules, even if the 
changes arise from the coronavirus pandemic.

   At the same time, the Supreme Court generally won't disturb state court 
rulings that are rooted in state law.

   But civil rights lawyers and election law experts said the vote in the 
Pennsylvania case indicates at least four conservatives may be willing to look 
at state court election-related decisions in a way that calls to mind Bush v. 
Gore.

   Pennsylvania Republicans relied in part on an opinion from Justice Clarence 
Thomas and two other conservative justices in Bush v. Gore to argue that the 
Supreme Court should get involved in the case because the state court had 
improperly taken powers given by the U.S. Constitution to state lawmakers when 
it comes to presidential elections. The court ruled for Bush on other grounds, 
that ballots were being handled differently across the state in violation of 
the Constitution's guarantee of equal protection.

   "Based on Judge Barrett's record, there is every reason to believe that she 
would have been a fifth vote in favor of the Supreme Court overstepping its 
bounds and interfering with a non-federal issue that would have jeopardized 
voter access," said Kristen Clarke, president and executive director of the 
Lawyers' Committee for Civil Rights Under Law. The group opposes Barrett's 
confirmation.

   The justices on Monday provided no written explanation of their votes, so it 
is impossible to say exactly why Justices Samuel Alito, Neil Gorsuch, Brett 
Kavanaugh and Thomas would have granted the Republican request or why the other 
half of the shorthanded court didn't.

   The Supreme Court has never cited Bush v. Gore in an opinion of the court, 
and in its unsigned majority opinion the court wrote, "Our consideration is 
limited to the present circumstances."

   But two lawyers who worked for Bush's cause in 2000, Roberts and Kavanaugh, 
now sit on the court. And they soon could be joined by a third, Barrett.