Those were the central questions in a series of rapid-fire federal appeals court decisions over the past week in ballot cases that could set the course for a post-Election Day showdown at the U.S. Supreme Court.
Here, Law360 reviews four takeaways from the most recent election-related action in the appellate courts.
Wisconsin's Ballot Extension Blocked as "Improper"
At the start of the week, a short-handed U.S. Supreme Court shot down a ballot rule change in the battleground state of Wisconsin, where a federal judge granted a six-day extension to the deadline for receiving mail-in ballots amid the coronavirus pandemic.
In a Monday decision denying a Democratic request to vacate a stay on that decision, Chief Justice John Roberts joined four other conservative justices. On the other side, Justices Elena Kagan, Stephen Breyer and Sonia Sotomayor agreed that the flood of mail-in ballots necessitated an extension, and that documented postal slowdowns had raised a serious risk that a significant number of ballots would arrive too late through no fault of voters.
In a short but significant opinion with potential ramifications for post-Nov. 3 decisions, Justice Roberts focused solely on the issue of the federal court's "intrusion" in the state-run election, a move he called "improper."
In a far longer analysis, Justice Neil Gorsuch said the Constitution gives the "primary responsibility" of election rules to state legislatures, rather than federal judges, governors or state officials. Separately, Justice Brett Kavanaugh also focused on legislative responsibility, noting that state courts don't have a "blank check" to modify the rules around federal elections.
"It is one thing for state legislatures to alter their own election rules in the late innings and to bear the responsibility for any unintended consequences," he wrote. "It is quite another thing for a federal district court to swoop in and alter carefully considered and democratically enacted state election rules when an election is imminent."
High Court Provides Less Clarity in North Carolina Case
Following the Wisconsin decision, some conservative court-watchers said the majority's preference for state legislator "primacy" could easily lead to a GOP win in another case out of North Carolina. There, a ballot receipt extension resulted from a state-court-approved agreement between a bipartisan state election board and a voter group.
But that that didn't happen. Two days after the Wisconsin decision, the Supreme Court declined a Republican request to block the state from pushing back the ballot receipt cutoff from Nov. 6 to Nov. 12 to account for COVID-19-related slowdowns.
The order was unsigned, and issued over the objections of Justices Gorsuch, Clarence Thomas and Samuel Alito. But with five justices needed to grant the requested injunction, it also left open the possibility that one justice did not note his or her dissent. More significantly, the order also didn't provide any further clarity on where Justice Roberts stands on some of the murkier constitutional questions presented in the North Carolina case.
The same day, the high court also denied an expedited appeal bid from the Trump campaign and other GOP groups of the court's Oct. 19 decision on a ballot-receipt case from Pennsylvania.
That state's three-day extension for receiving mail-in ballots had been approved by the Pennsylvania Supreme Court. Justice Roberts had joined the liberal wing of the court, resulting in a 4-4 deadlock that maintained the extension.
Eighth Circuit Orders Ballot Segregation
At oral arguments Tuesday, a three-judge panel of the Eighth Circuit heard yet another ballot extension case, this one out of Minnesota.
In a scenario closely mirroring the North Carolina case, the appeal sprang from a suit filed by a Republican state lawmaker and a GOP activist over a consent decree that gave election officials a weeklong cushion to accept otherwise valid mail-in ballots postmarked by Election Day. That agreement was reached in August between the secretary of state and a citizens group. The Trump campaign and Republican groups initially challenged the move in state court, but ultimately waived their right to challenge the decree.
But a Republican lawmaker and a GOP activist then sued in federal court on constitutional grounds, and were rebuffed by a district court judge who concluded they didn't have standing to request an injunction.
In a late Thursday decision, a divided Eighth Circuit panel reversed that ruling on what the majority called a "purely legal question" of standing, while concluding that the GOP challengers were likely to win their case on the merits.
In a nod to the likelihood of more ballot litigation, the circuit court also ordered that ballots received after Nov. 3 be segregated from those received by Election Day. That move, the court said, accounts for the possibility that Minnesota ballots received after Nov. 3 will later be deemed "invalid or unlawfully counted."
Hours later, Minnesota Secretary of State Steve Simon said the order had unambiguously eliminated the seven-day grace period and urged voters to deliver ballots by hand or vote in person.
The Eighth Circuit panel majority included President Donald Trump's appointee U.S. Circuit Judge L. Steven Grasz, a former Husch Blackwell LLP senior counsel and Nebraska chief deputy attorney general who got a rare "not qualified" rating from the American Bar Association before his 2017 confirmation.
The third panel member, U.S. Circuit Judge Jane Kelly, was nominated in 2013 by President Barack Obama, and was at one point considered for the seat once held by Supreme Court Justice Antonin Scalia.
In her dissent, Judge Kelly said she was unconvinced the GOP challengers — both of whom will serve as Republican electors should Trump win in Minnesota — had Article III standing to bring their claim.
In response to the GOP position that only the state legislature can make election rule changes, Judge Kelly noted that the legislature delegates a variety of election duties to the secretary of state.
"Far from 'overriding' the state legislature, the Secretary followed a duly enacted provision of Minnesota state law when implementing alternative procedures for receiving ballots after Election Day," she wrote.
Justice Barrett Emerges as the Wild Card
The U.S. Supreme Court's newest member, Justice Amy Coney Barrett, was sworn in Tuesday after the Wisconsin decision dropped and before the North Carolina and Pennsylvania orders. The same day, Pennsylvania Democrats called for her recusal from their case, citing in part the link Trump himself drew in public comments between her appointment and his prospects for a second term.
A court spokeswoman said Wednesday that Justice Barrett did not participate in the Pennsylvania decision because she had not had time to fully review the case, and her name did not appear on the North Carolina order.
With Justice Roberts now looking something like the court's ideological center on the federal-versus-state election oversight issue, all eyes are now on Justice Barrett as a potential deciding vote for the conservatives as more election issues reach the court.
In a statement accompanying the Pennsylvania decision, Justice Alito indicated the he expected the court to see the matter before the court again.
"[T]he Court's denial of the motion to expedite is not a denial of a request for this Court to order that ballots received after election day be segregated so that if the State Supreme Court's decision is ultimately overturned, a targeted remedy will be available," he wrote.
--Editing by Breda Lund and Jill Coffey.
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