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Warning of 'Poisonous Consequences,' Pennsylvania County Elections Board Calls on Barrett to Recuse Herself in Crucial Mail-in Ballot Case

"It is reasonable to infer that, in Trump's mind, Barrett must repay his appointment by refusing to recuse, and then by voting both to secure his election and to gut the Affordable Care Act," wrote one legal ethicist. 

U.S. President Donald Trump stands with newly sworn-in U.S. Supreme Court Justice Amy Coney Barrett during a ceremonial swearing-in event on the South Lawn of the White House on October 26, 2020. (Photo: Tasos Katopodis/Getty Images)

U.S. President Donald Trump stands with newly sworn-in U.S. Supreme Court Justice Amy Coney Barrett during a ceremonial swearing-in event on the South Lawn of the White House on October 26, 2020. (Photo: Tasos Katopodis/Getty Images)

Newly sworn-in U.S. Supreme Court Justice Amy Coney Barrett on Tuesday was asked by Pennsylvania's Luzerne County Board of Elections to recuse herself from participating in a case regarding the extension of the state's deadline for counting mail-in ballots. 

Barrett officially joined the court late Monday night after being rushed through the confirmation process by the Republican Party in time to possibly decide disputes related to the re-election bid of President Donald Trump, who admitted as much when he appointed her. 

"Trump demanded Barrett's immediate confirmation without delay precisely because he wants her to cast a vote when, as he predicts, a dispute about the presidential election arrives at the Supreme Court."
—Renee Jefferson, University of Houston

As Common Dreams reported earlier Tuesday, Pennsylvania Republicans made a second request to stop a mail-in ballot deadline extension on Friday night, just days after the Supreme Court, in a 4-4 decision, blocked efforts by the state's GOP to suppress voting rights amid the coronavirus pandemic. 

While the eight-person Supreme Court deadlocked over the Pennsylvania Supreme Court's ruling that absentee ballots postmarked by Election Day and received by November 6 must be accepted, the state's Republican Party—emboldened by the fact that Barrett's addition to the high court has created a definitive majority of conservative justices—asked for another "fast-track[ed] formal review" of the lower court's decision, as The Hill reported

If the GOP's attempt to roll back absentee voting accommodations is successful, a substantial number of mail-in voters—disproportionately the backers of Democratic presidential nominee Joe Biden given that they are more likely than Trump's supporters to vote by mail—could be disenfranchised in Pennsylvania, a crucial battleground state in the 2020 election that the incumbent won four years ago by fewer than 45,000 votes. 

"Although a federal statute requires that a justice must disqualify herself in any matter where 'impartiality might reasonably be questioned,' little guidance exists about what circumstances fall under that phrase," Renee Jefferson, a professor of law at the University of Houston, explained in an op-ed published by the New York Daily News on Monday night. 

"And, in any event, whether or not an individual justice will recuse is subject to that justice's unilateral choice, which no one can challenge," Jefferson added.

The recusal motion (pdf), filed Tuesday by the Lezerne County Board of Elections, argued that Barrett should be recused from opining on the extension of Pennsylvania's deadline for accepting mail-in ballots, stating that her "participation could be catastrophic to the delicate foundation of integrity and public confidence upon which the judiciary sits."

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The motion describes the "unprecedented" nature of Barrett's nomination and confirmation, referring to its proximity to the presidential election. "As concerning as that is," the document states, "what is even more troubling is the language Trump has used in consideration of this nomination, linking it directly to the electoral season at hand, with implications for his own re-election." 

"If there were ever a circumstance where impartiality might be reasonably questioned, Barrett's confirmation will lay it out for all to see. She will have received a lifetime appointment to the Supreme Court in the midst of an election that the president expects to be resolved by her, in his favor."
—Renee Jefferson, University of Houston

The motion cited late September reporting by the Washington Post, which noted that "Trump predicted that the Supreme Court will be called upon to determine the winner of the presidential election and that whomever he nominates on Saturday to replace the late Justice Ruth Bader Ginsburg might cast the decisive vote in his favor."

"I think this will end up in the Supreme Court. And I think it's very important that we have nine justices," Trump said. "It's better if you go before the election, because I think this scam that the Democrats are pulling—it's a scam—the scam will be before the United States Supreme Court. And I think having a 4-4 situation is not a good situation."

Echoing the argument invoked by the county's motion, Jefferson pointed out that "Trump demanded Barrett's immediate confirmation without delay precisely because he wants her to cast a vote when, as he predicts, a dispute about the presidential election arrives at the Supreme Court."

According to Jefferson, "it is reasonable to infer that, in Trump's mind, Barrett must repay his appointment by refusing to recuse, and then by voting both to secure his election and to gut the Affordable Care Act."

"If there were ever a circumstance where impartiality might be reasonably questioned, Barrett's confirmation will lay it out for all to see," Jefferson added. "She will have received a lifetime appointment to the Supreme Court in the midst of an election that the president expects to be resolved by her, in his favor."

The motion calling for Barrett's recusal argues that her participation in 2020 election litigation "raises a terrible 'appearance' problem which can only engulf the Supreme Court in a political stew with poisonous consequences for the independence and perceived integrity of the judiciary."

Correction: An earlier version of this article, including the headline, reported that Pennsylvania's Secretary of State backed the call for recusal. That was incorrect and has been clarified.

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