The Alito Precedent No One is Talking About

Much has been written about Supreme Court Justice Samuel Alito flying two different flags over his homes publicly indicating that his personal political views align with January 6th insurrectionists and 2020 presidential election deniers. The various reactions that Alito has damaged the Court’s reputation and that he should recuse himself from Trump-related cases pending before the Court are certainly correct.

What concerns me most, however, is something else Justice Alito is familiar with: precedent. Specifically, the precedent Alito’s actions set for other officials whose jobs require the highest degree of impartiality—such as state and local election officials.

Government officials have political views just like the rest of us. However, when your government duties require you to avoid even the appearance of impropriety for the government itself to function properly, there’s a bargain to be had: you can either be an overt partisan, or you can be a public servant.

Photo by Saul Loeb/Getty Images

Let’s say there’s a Municipal Clerk in a heavily Democratic area who, as the town’s election official, decides to put ballot drop boxes on the local college campus and hold an extra weekend of early voting. If that Clerk posts on his personal blog that Trump’s election would mean the end of American democracy, but tells his readers “not to worry” because he’s “confident Biden will win by a landslide” in his town, the Clerk’s election decisions will appear biased and unreliable.

Or imagine an election worker in that same Democratic area who picks ballots from a dozen polling places after polls close. If that worker posts pictures on her Facebook page showing her enthusiastic attendance at a pro-Trump “Stop the Steal” rally, she raises questions about the integrity of the ballots that were in her sole possession on election night.

When it comes to the integrity of our elections and the impartiality of our election officials, our democracy simply can’t sustain the levels of doubt and mistrust that come with such open displays of overt partisanship and tribalism.

Up until now, we haven’t had to live in that world. Public service is a public trust, and the public servants who have so nobly dedicated their careers to sustaining our democratic institutions have lived by an honor code of keeping whatever partisanship they may have to themselves for the good of the order.

The message Alito now sends to public servants by being openly, unapologetically partisan while passing judgment on the very cases and candidates he shows public favoritism for is in stark contrast: If overt partisanship is allowed when deciding election cases at the United States Supreme Court, why shouldn’t it be allowed in election administration decisions in your local polling place or county clerk’s office?

By providing a permission structure for open bias in election administration—a precedent that has never existed before—Alito has unfortunately added to the challenge of holding a free and fair election that the country will accept as legitimate.