https://www.rawstory.com/2020/10/one-o ... -analysis/On Monday, the Republican-appointed justices on the Supreme Court rejected a push to expand Wisconsin’s ballot processing deadline so that votes received after Election Day will count, as long as they are postmarked by the proper day.
But according to Slate legal journalist Mark Joseph Stern, Justice Brett Kavanaugh signaled he would have been willing to go even further — and embrace a legal theory saying that not only should federal judges be blocked from expansion of voting rights ahead of elections, but state judges should be as well.
Such a theory, Stern noted, was suggested by right-wing former Chief Justice William Rehnquist in the Bush v. Gore ruling that decided the 2000 presidential election — but not even all the other conservative justices agreed with it.
A federal court’s alteration of state election laws such as Wisconsin’s
differs in some respects from a state court’s (or state agency’s) alteration of state election laws. That said, under the U. S. Constitution, the state courts do not have a blank check to rewrite state election laws for federal elections. Article II expressly provides that the rules for Presidential elections are established by the States “in such Manner as the Legisla- ture thereof may direct.” §1, cl. 2 (emphasis added). The text of Article II means that “the clearly expressed intent of the legislature must pre- vail” and that a state court may not depart from the state election code enacted by the legislature. Bush v. Gore, 531 U. S. 98, 120 (2000) (Rehnquist, C. J., concurring); see Bush v. Palm Beach County Canvass- ing Bd., 531 U. S. 70, 76–78 (2000) (per curiam); McPherson v. Blacker, 146 U. S. 1, 25 (1892). In a Presidential election, in other words, a state court’s “significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question.” Bush v. Gore, 531 U. S., at 113 (Rehnquist, C. J., concurring). As Chief Justice Rehnquist explained in Bush v. Gore, the important federal judicial role in reviewing state-court decisions about state law in a federal Presiden- tial election “does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures. To attach definitive weight to the pronouncement of a state court, when the very question at issue is whether the court has actually departed from the statutory meaning, would be to abdicate our responsibility to enforce the explicit requirements of Article II.” Id., at 115.
The dissent here questions why the federal courts would have a role in that kind of case. Post, at 11, n. 6 (opinion of KAGAN, J.). The answer to that question, as the unanimous Court stated in Bush v. Palm Beach County Canvassing Bd., and as Chief Justice Rehnquist persuasively ex- plained in Bush v. Gore, is that the text of the Constitution requires fed- eral courts to ensure that state courts do not rewrite state election laws.
Given ideas of what we can expect from the SCOTUS in the future.