Amy Coney Barrett is preparing to join the Supreme Court as the justices are ready to take action on a number of important petitions before them, including several related to next week’s election.
Barrett will solidify a 6-3 conservative majority on the high court and will be able to participate in the court’s action on the petitions, potentially giving Republican litigants an additional ally as the justices review the various requests.
Here is a look at the major petitions awaiting Barrett:
Trump taxes case
The justices are primed to decide soon whether a New York prosecutor will get access to Trump’s financial documents from January 2011 to August 2019, including his tax returns.
Last July, the Supreme Court, voting 7-2, rejected the President’s broad claims of immunity from a state criminal subpoena seeking his tax returns and said that as president he was not entitled to any kind of heightened standard unavailable to ordinary citizens. The justices sent the case back to the lower court so that the President could make more targeted objections regarding the scope of the subpoena.
Trump’s lawyers told the lower courts that the subpoena was overbroad and issued in bad faith, but the courts once again rejected those arguments.
An appellate court ruled earlier this month that “there is nothing to suggest that these are anything but run-of-the-mill documents typically relevant to a grand jury investigation into possible financial or corporate misconduct.”
Trump’s personal lawyers then took the case back to the Supreme Court, urging the justices to put the lower court ruling on hold while the justices considered whether to take up the appeal.
If the justices deny the request, the subpoena can go forward although the documents will be shielded from public release because of grand jury secrecy rules.
Pennsylvania ballot extensions
Republicans in Pennsylvania asked the Supreme Court on Friday to block a ballot receipt extension that would allow them to be counted if they are received within three days of Election Day – even if they do not have a legible postmark.
The lawyers acknowledged in the brief that the Supreme Court was divided 4-4 on an emergency stay request on the issue last week, with Chief Justice John Roberts siding with the liberals to allow the extension. It takes five justices to grant the Republicans’ request, making Barrett’s vote critical in the new request.
The GOP is now asking the justices to formally take up the case, put it on an expedited schedule and decide the issue before Election Day.
“Because the election is imminent, these questions must be answered immediately. Absent quick action by this Court, Petitioner’s appellate rights – as well as this Court’s jurisdiction over the case – could be lost,” lawyers for the Republicans argued in the filing.
Former acting Solicitor General Donald Verrilli is representing the Democrats and urged the justices to deny the Republican Party’s “extraordinary and unjustified request for expedition” and allow Pennsylvania “to hold its federal elections under existing rules.”
Wisconsin ballot counting and requests
One case that appeared to be awaiting Barrett was announced minutes before the Senate vote Monday.
It concerned petitions from Wisconsin Democrats, who were asking the justices to allow the counting of ballots six days after the election and whether Covid-19 vulnerable voters and others in the state could secure replacement mail-in ballots by email.
A federal appeals court had ruled earlier this month in favor of Republicans, holding that ballots could be counted only if they are received by Election Day. A 5-3 Supreme Court agreed.
In asking the Supreme Court for relief, lawyers for the Democrats argued that the “confidence in Wisconsin’s electoral process will be shattered if tens of thousands of valid, timely cast absentee ballots are not counted because they arrived two or three days after the election due to mail delays and other factors beyond the voters’ control.”
But a lawyer for the Republican-led state legislature said that state laws were “exceedingly generous” and fell squarely within “its broad authority to keep or make changes to election rules to address Covid-19.”
North Carolina ballot counting extension
Republicans in North Carolina are asking the Supreme Court to block a nine-day extension of the counting of ballots if they are received by Election Day and reinstate a three-day extension established by the legislature last June.
A federal appeals court had allowed the nine-day extension that was set by the State Board of Elections amid the pandemic, as part of a legal settlement.
“The extension simply makes it easier for more people to vote absentee in the middle of a global pandemic that has killed over 200,000 Americans,” the appeals court ruled.
Republicans challenged the State Board’s action arguing that it had tried to “rewrite of the election code” and usurp the authority of the General Assembly that had only allowed the three-day extension. In court briefs, Republican lawyers said that the state board’s decision “undermines the equal protection rights of voters, and is already causing the voter confusion and chaos.”
Minnesota congressional election date
A Republican candidate for Minnesota’s 2nd Congressional District is asking the justices to intervene in a case concerning whether his election takes place on November 3 or on February 9, 2021, after the recent death of Legal Marijuana Now Party candidate Adam Weeks caused the contest to be moved to next year as required by state law.
In a filing submitted on Monday, lawyers for Republican Tyler Kistner argued the court should issue a stay for a preliminary injunction issued by a lower court that reinstated the November election for his race, saying if the election takes places next week, both voters and Kistner will suffer “enormous and irreparable injury.”
“By changing the rules in the middle of the election, and thereby subjecting voters to different rules on the basis of when they cast their ballots, the injunction violates basic equal-protection principles and severely injures the affected voters and public interest,” the lawyers wrote.
Kistner is challenging Democratic Rep. Angie Craig in the race.
Mississippi abortion case
As abortion rights backers and opponents spar over whether Barrett’s confirmation would mean the end of Roe v. Wade, the 1973 landmark Supreme Court decision, the justices will consider Friday whether or not to hear a case that could directly challenge the precedent.
The case pertains to Mississippi’s 15-week abortion ban, which Republican Gov. Phil Bryant signed into law in 2018. The law made exceptions only for medical emergencies or cases in which there’s a “severe fetal abnormality,” but not for incidents of rape or incest. A federal judge in Mississippi struck down the law in November 2018, and the 5th US Circuit Court of Appeals upheld the ruling late last year.
But in supplemental briefs filed Thursday, Mississippi Attorney General Lynn Fitch referenced the last Supreme Court case heard by the court, a Louisiana regulation involving hospital admitting privileges. Roberts’ concurring opinion, appearing to walk back precedent on how courts should analyze the benefits and the burdens of a particular abortion law, had been interpreted differently by different circuit courts, she argued.
“This case remains an ideal vehicle to promptly resolve both that question and the first question presented – the contradictions in this Court’s decisions over use of ‘viability’ as a bright line for measuring pro-life legislation,” Fitch wrote.
UPDATE: This story has been updated following the Supreme Court’s ruling on the Wisconsin appeal.