December, 15 2020
Bob Buckley, partner at White, Graham, Buckley & Carr, is a regular columnist for The Examiner of East Jackson County. In his latest column, Buckley summarizes Justice Amy Coney Barrett’s first few cases as a U.S. Supreme Court Justice, specifically election-focused cases.
The article, Busy Days, Key Decisions for the Supreme Court, was published in the Dec. 11 edition of The Examiner. An excerpt from the article is below.
It did not take long for Justice Amy Coney Barrett to assert her impact on the United States Supreme Court. She was confirmed by a vote of 52-48 on Oct. 26 and sworn into office the next day. Although she had ascended to her new position on Nov. 3, she did not participate in two decisions of the Supreme Court in which challenges were made to election officials in Pennsylvania and North Carolina over the acceptance of absentee ballots.
In the Pennsylvania case, the court was asked whether election officials could continue to accept absentee ballots three days after Election Day. In the North Carolina case, the court let stand lower court rulings that allowed the state board of elections to extend the deadline to nine days after Election Day, up from the three days called for by the state legislature. Judge Barrett did not participate in either decision “because of the need for prompt resolution” and “because she had not had time to fully review the parties’ filings.”
On the Pennsylvania case, there was a motion to expedite the petition seeking review, but that motion failed. An earlier vote on Oct. 19, before Judge Barrett’s confirmation, to block the decision of the Pennsylvania Supreme Court pending the outcome of the case was not successful as the vote was 4-4. Had the new judge participated, the court might have blocked that court decision.
However, last Tuesday, the Supreme Court, which included Judge Barrett, then refused to stop Pennsylvania from finalizing President-elect Joe Biden’s victory despite the challenge that the expansion of mail-in voting was illegal. The Pennsylvania Supreme Court had ruled that a challenge to the state law permitting the late ballot counting was too late. It was a one-sentence order and unsigned, but it is safe to say that a majority of the justices agreed with the denial. It is therefore unknown how Judge Barrett voted.
Thus, the rest is history as Joe Biden won Pennsylvania even though President Trump was ahead on Election Day. The additional votes counted before Friday gave Joe Biden the win. All votes have been certified by all states and the Electoral College will vote next week. There was a challenge filed this week by 18 states who have sued Pennsylvania, George, Michigan and Wisconsin. Few legal scholars thought that last-gasp effort would be successful, but the Supreme Court on Friday rejected the case.