In our system, states have a measure of the independence of the federal government. This is important because in many places state courts have become the best way to protect voting. But that’s a question, as evidenced by the 4-4 Supreme Court’s ruling last week.
However, this is an area where you have a lot of indirect leverage in this regard. In the November election, you can have even more influence on the existence of federalism than in the presidential race.
Last week, the Supreme Court leave alone a Pennsylvania Supreme Court ruling in which a state court allows mail-to-mail ballot counting to continue until Friday after Election Day. The idea that a state court can interpret its own election laws is rather misleading. However, four Judges voted to intervene: Alito, Thomas, Gorsuch and Kavanaugh. Judge Roberts joined the three liberals, creating a stalemate.
As soon as Tuesday, that split can be resolved with confirmation from Amy Barrett. At that time, intermediate justice could be Gorsuch or sometimes Kavanaugh. Roberts will no longer be a decider. That’s what comes with the 6-3 super majority.
If the Supreme Court asserted priority over state law over local electoral governance, it would be a rather radical extension of its power. Basically, the concept would be the Constitution that says “legislatures” govern the elections. Based on the Court’s right-wing point of view, this does not include government agencies explaining the law, IE State courts will have no say.
(Alternatively, the Court can do what it normally does in tense situations: make a ruling that coincides with its party’s preference and says it has a narrow scope, no price tag. Finally, there is an even brighter scenario in which the Court finds ways to avoid such disputes. Essay of Ned Foley Today at SCOTUSblog describes such an escape.)
Such power change will have profound effects on voting power. Voter-approved redistribution commissions in Michigan and Colorado couids will be void. The state’s constitutional provisions that protect the right to vote can be overridden. For pro-democracy tools that could be disabled, see my law article on how state constitutions provide protections against gerrymandering parties. The terms we review are applicable to many types of voting rights – for now.
This could be countered by reforms of the federal court. However, reform of federal courts, such as the expansion of the surrounding courts or even the Supreme Court itself, requires legislation. That, in turn, required a means of passing through the legislative cycle in the Senate. Currently, it is said that five Democratic Senators oppose such a change in Senate rules.
Take a look at the Senate PEC polling rankings. Currently, Democrats lead 5 points or more in races enough to reach 48 seats by 2021. Republicans lead by the same margin in enough states to reach 43 seats. That leaves 9 rotatable races – and a host of futuristic possibilities. If Democrats do not gain control or end up low, such as 50-52 seats, deadlock is inevitable in many areas. If they get 55-57 seats, then law and reform are possible.
This chart shows what would happen if the election results differ from the current polls. Essentially, a percentage point change in the vote leads to a change of one Senate seat, more or less. It is a huge amount of leverage, especially in small states where profit margins are close together.
Among the smaller states, the closest Senate races are in Alaska, Montana, and Kansas. Your voting activity and contributions will make a big difference there. See ActBlue (for surviving Democrats and federalists) and WinRed (for Republicans, a change from federalism) alignment in the left sidebar.