[The conclusion of Part 4]
3. New York -- The issues here are rich and arise from the natural disaster suffered last week when Hurricane Sandy hit the mid-Atlantic states. To some extent, they repeat but also exacerbate the problems cited above. New York's Governor reportedly has announced an extension of mail-in ballots because the storm may render many New York City precincts unusable; can voters in Buffalo or Utica, far from the storm's direct impact area, likewise mail in ballots after the previous deadline for returning absentee ballots? Some New York City area precincts are reportedly relying on generators to power electronic voting machines, but manufacturers have warned that disruptions in power flow may cause data in those machines to be erased or corrupted. What does New York do in that event? Allow revoting in those precincts? Mayor Bloomberg has mentioned a New York law that permits the use of additional inperson Election Days in the event a natural disaster affects a portion of the state; is New York contemplating allowing citizens in New York City and Long Island to have a second Election Day next week?
4. New Jersey -- Like New York, New Jersey is on this list because of changes in voting procedures made prior to Election Day in response to the damages and displacement caused by Sandy. The Governor here is Republican, unlike the Governor in Albany, but that doesn't and shouldn't matter of course. What does matter is that the Governor has announced the most radical fixes to the voting problems caused by Sandy. He not only added two days of early voting, and not only pushed forward the deadline for mail-in absentee ballots (now ballots postmarked by Election Day will be counted, although they won't be received by tabulators until the end of this week or later), but apparently he has created an entirely new concept in ballot transmission --overseas voters (nonresident citizens physically outside the United States), obviously unable to vote in person in New Jersey on Election Day, were already permitted under state law to vote by email, but the Governor has extended this by declaring that residents affected by the storm will be treated as though they were overseas voters and therefore may elect to vote by email also! It seems highly unlikely that the New Jersey legislature gave the executive branch power to expand the category of overseas citizens to include residents actually present in the state on Election Day.
In all of these cases, good arguments can be made for and against these modifications of election laws, especially in the case of the natural disaster in New York and New Jersey. How can one be against allowing a bona fide registered voter to vote? But that is why there are rules, to avoid having every election turn into countless ad hoc decisions about which votes count and which do not.
And while prior to Bush v Gore, each of these states most likely could have made these very same decisions, and there would have been hardly any voice of complaint -- let each state decide how to deal with its voting protocol based on the circumstances of its people -- Bush v Gore has now turned all of these changes at the state level, and probably many more, into potential federal court cases.
As mentioned near the beginning of this Part 4, in the 12 years since Bush v Gore was decided, almost half of the Court's membership has changed. Based on their opinions in Bush v Gore, three of the Justices (Scalia, Thomas, and Kennedy) should be expected to be receptive to arguments that seek to have the Court intervene in Presidential election issues within these states; certainly Scalia and Thomas would be open to not only Equal Protection arguments but also arguments based on Article II concerns. Breyer, too, would probably join that group in unease over Equal Protection issues, although not Article II matters; but Breyer certainly would be hesitant to conclude that the Court, instead of the various states, should fashion a remedy to correct problems. Ginsburg alone among the carryover Justices from 2000 could be expected to be absolutely against any federal judicial intervention, based on what she did in Bush v Gore. So that leaves a spectrum of two strong interventionists who would be likely to see in some or all of these situations federal questions that require federal court resolution and remediation; and one who would join them, but not exuberantly (Kennedy). On the other side, Ginsburg should be expected to be adamantly opposed in most situations to the Court stepping into matters best left, in her judgment, to the states; and Breyer would lean in Ginsburg's direction but possibly have sympathies for the other side.
So if it may be presumed that the carryover Justices would likely split 3-2 in favor of federal judicial intervention, who if any among four new Justices (Roberts, Alito, Sotomayor and Kagan) might join them? Irony kicks in like a tsunami on this point: have Sotomayor or Kagan evidenced any reluctance to ever have the federal government's role be paramount in any matter? But, as in Bush v Gore, the Democratic party likely will be urging the Court NOT to intervene in what the states have done, in order to preserve the lowest possible minimum standards for "legal votes" and to allow contests to continue in a series of local battles just as they would have in 2000 had the Court not effectively terminated Florida's recount. Who knows what Alito would do? And Roberts would seem to be prone by philosophy and practice to steer the Court away from participating in essentially political disputes, and so more likely to reject arguments that the Court should involve itself in the election; yet he also seems unable, in face of contentious national issues, to allow disputes to be worked out through the messy, noisy manner of democracy, and instead prefers to broker a compromise that will bring finality to the conflict.
Will we have a President-elect tomorrow morning? Or this week? Or even by the end of this calendar year?
Bush v Gore legitimized the notion of federal courts directly deciding the outcome of the Presidential election, and THAT is why Bush v Gore was and is a very bad decision.