DAVID GREENE, HOST:
A late-night ruling from the U.S. Supreme Court last night is offering a window into how the court might rule over a contested outcome on Election Day if that happens. The court lets stand an appeals court decision restoring a hard deadline for accepting absentee ballots in the state of Wisconsin. November 3 at 8 p.m. is now the latest time that this key swing state can receive absentee ballots.
President Trump responded immediately after this decision on Twitter, warning, again, that any ballots that come in after election night should be discounted. Rick Hasen is with me now. He's a law professor at the University of California at Irvine, and his specialty is election law. Thanks so much for being here, professor.
RICK HASEN: Good to be with you.
GREENE: So what was the Supreme Court's argument here for upholding this hard deadline?
HASEN: In this particular case, it really wasn't that much of a surprise because you had a federal court ordering an extension of the deadline, finding that the state law was going to impose too much of a burden on voters during the pandemic. There have been a whole number of cases, including one earlier out of Wisconsin from the primary and one from South Carolina, where the courts have said federal courts cannot be changing the state rules, and they especially shouldn't be making changes close to the time of the election.
GREENE: We saw Justice Brett Kavanaugh quoted a New York University professor in his argument, saying that "late-arriving ballots open up one of the greatest risks of what might, in our era of hyperpolarized political parties and existential politics, destabilize the election result." Why is he making such a dramatic argument there, that if they had allowed ballots to come in later that this would've been a serious problem?
HASEN: What he was saying in the part that you were referring to was that late-arriving ballots could create a situation where one candidate could be ahead and then the results could flip, to which Justice Kagan replied, there's no flipping, it just takes time to count the ballots. The reality is that we never know an official winner on election night. And it often takes many days, even if the deadline is election night, for all the ballots to be counted, especially in a close race.
GREENE: Is it accurate to say that the conservatives are basically siding with President Trump here in suggesting that you've got to stop counting quickly and not let mail-in ballots and other ballots to come in as the days go forward?
HASEN: It was not about stopping the counting. The question that was before the court was about the acceptance of ballots after Election Day. And states have different rules about that. Some states say that the ballots have to arrive by Election Day. Other states say that they have to be postmarked by Election Day. And we're seeing disputes coming up from different courts, including one that's back before the Supreme Court out of Pennsylvania, where a state Supreme Court had ordered that the deadline for the receipt of ballots be extended. And that's maybe where this case was the most important.
GREENE: What does this decision, in your mind, preview in terms of how the court might rule if we have an inconclusive election night?
HASEN: If we go back to last week, the Supreme Court, in dealing the first time with that Pennsylvania case, deadlocked 4-to-4 with the four conservative justices appearing to embrace this idea that state courts applying state constitutions are really limited in the kinds of remedies they can give.
Now, we have a fifth justice, Justice Barrett, who's quite conservative. We don't know exactly how she'd rule on this issue. But if she's with the other conservatives, she could be part of a majority that, in the case of a close election, could look at more restrictive rules that could affect things like recounts. And so one of the things President Trump has said is that he wanted Barrett on the court to help decide election cases. If the election is very close, she could be in exactly that position.
GREENE: Rick Hasen from the University of California, Irvine. His book is "Election Meltdown: Dirty Tricks, Distrust, And The Threat To American Democracy." Thanks so much for your time this morning. We appreciate it.
HASEN: It was great to be with you.
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