Writing for Vox this Tuesday, Ian Millhiser says that when it comes to determining who is going to be president in 2020, there's a crucial question that has yet to be resolved: "If the courts change the rules governing an election after voters have already cast their ballots, are voters who did not comply with these new rules disenfranchised, even if they followed the rules that were in place when their ballot was cast?"
Justices Thomas, Alito, and Gorsuch have argued voters could have their ballots thrown out even if they followed rules that were in place when they voted if a court later changes the rules. Kavanaugh hasn't gone that far, and Barrett hasn't offered an opinion yet. "In other words, it’s not at all clear whether a majority of the Supreme Court shares the view that ballots should be tossed if the rules that were in place when they were cast are later changed," Millhiser writes.
"Currently, there are at least four states — Pennsylvania, North Carolina, Minnesota, and Texas — where a court could potentially change longstanding election rules and then order ballots tossed out for failing to comply with these new rules," Millhiser writes. "All of these states, and especially Pennsylvania and North Carolina, feature competitive races for the state’s presidential electors."
According to Millhiser, the election's results depends on whether or not "five justices are willing to disenfranchise voters because those voters failed to see into the future."
Read the full op-ed over at Vox.