The dispute in North Carolina is, in reality, not a legal dispute at all. State law allows the Board of Elections to modify voting rules when a “natural disaster” has spurred the president or governor to issue a disaster declaration. (Both have.) So voters sued, demanding that the board extend the ballot deadline by six days. The board—unanimously, by a bipartisan vote—ultimately agreed to a “consent judgment,” essentially a settlement, with the approval of a state court. The court found that COVID-19 constitutes a “natural disaster” under state law that justifies a modification of the deadline. North Carolina law permits the board to settle election lawsuits in this manner. The state court of appeals declined to block the settlement, as did the state Supreme Court.

Republicans promptly sued to halt the deadline extension in federal court. They cited the U.S. Constitution’s elections and electors clauses, which allow state legislatures to regulate elections, claiming the board unconstitutionally usurped the legislature’s power. In fact, the Supreme Court has long held that legislatures don’t hold sole authority to run elections; state courts can enforce election rules, and the legislature can delegate their powers—to a board of elections, for instance. Different parts of the state government can play a role without violating the Constitution. SCOTUS has also forbidden federal courts from overriding a state’s interpretation of its own law. As the court put it in 1984, “it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law.”

On Wednesday, the Supreme Court turned away Republicans’ request to shorten the deadline. But in a jaw-dropping dissent, Gorsuch contested the North Carolina court’s interpretation of state statutes. The justice claimed that COVID-19 is not a true “natural disaster” under state law—even though it fits the legal definition according to a state court, as well as the plain text of the statute. He insisted that “the normal schedule for the election” has not been “disrupted” because the state “stands fully equipped to conduct its election on November 3.” But he did not seem to know that state law defines a “disruption” to encompass any impairment of “election administration,” or that the Postal Service warned North Carolina that its mail ballot system would be impaired by slowdowns. And by accusing the board of creating an “unnecessary conflict” with state law, Gorsuch defied the state court’s conclusion that the board’s actions were reasonable: They did not conflict with the election code, but simply enforced it.

Gorsuch’s approach here—going over state law with a fine-toothed comb to see if the state court got it right—is a stunning assault on state sovereignty. An oddly timed one, too: It is outrageous enough to reject an unbroken line of precedent that lets states run their own elections; it’s another thing to do so six days before Election Day. The Supreme Court’s ultraconservative faction appears bent on destabilizing this election. These justices are teeing up another Bush v. Goreif the presidential race comes down to Pennsylvania or North Carolina. They have laid the groundwork to nullify late-arriving ballots on the basis of a dangerous constitutional theory that even Chief Justice John Roberts finds too extreme.

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Alito signed on to Gorsuch’s dissent in the North Carolina case, while both Gorsuch and Thomas signed on to Alito’s opinion in the Pennsylvania case. Kavanaugh has already signaled his support for Gorsuch’s approach, though he did not note his vote on Wednesday. (He may have been chastened by backlash to his error-riddled Monday opinion.) These four justices are plainly waiting for Amy Coney Barrett to break the deadlock, though she declined to participate in either case, citing her very recent arrival. She did not recuse herself, so presumably she will participate in litigation that arises after Nov. 3. So many people have tried to make this election run smoothly: More than 80 million Americans have already cast a ballot, and election officials have diligently navigated the pandemic to make voting as safe as possible. Yet American democracy hangs on the vote of a justice who was, by Trump’s admission, chosen to give him a second term.

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Correction, Oct. 30, 2020: This article originally misspelled Samuel Alito’s first name.

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