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Election Dissection contributor Edward B. Foley lays out one of the key questions about a Supreme Court back at full strength with a conservative supermajority: Which conservative tradition will Amy Coney Barrett follow?
If Barrett follows the judicial self-restraint philosophy of Felix Frankfurter, Barrett will be reluctant to act on questions relating to electoral politics, Foley writes in The Washington Post. In order for the high court to retain public confidence, it was necessary to maintain "complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements," Frankfurter said.
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Wisconsinites with ballots sitting on their kitchen tables have received the same message now from two of Washington's most influential institutions, the Supreme Court and the Postal Service: Complete them and get them in the mail right away. As in, Tuesday.
USPS long ago set this day as the best-practices cutoff for mailing an absentee ballot with confidence it would arrive by Election Day. The warning took on special urgency Monday in one of the top presidential battlegrounds, when the high court voted 5-3 against Wisconsin accepting any mailed ballots arriving after the polls close a week from now.
The decision was the last in an election law dispute before Justice Amy Coney Barrett was confirmed and sworn in Monday night. She can now participate in the appeals of ballot receipt extensions in two other tossups, Pennsylvania and North Carolina.
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There is a collision of two tectonic plates occurring in the world of election law, and it is causing an earthquake in federal jurisprudence on absentee voting.
One of these tectonic plates is the so-called Anderson-Burdick balancing test. This has been the Supreme Court's basic framework for evaluating the general constitutionality of election procedures. Anderson involved the independent presidential candidacy of John Anderson in 1980 and, specifically, his claim that Ohio had an unconstitutionally early deadline for getting on the ballot. Anderson's claim prevailed.
Burdick involved Hawaii's prohibition against write-in votes. (The claim of unconstitutionality lost.) The court in that case built on its Anderson decision. It said that a court must weigh "the character and magnitude of the asserted injury" to First and 14th Amendment rights against the state's interests and justifications for "the burden imposed by its rule."
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