Rounding That Turn

Here’s a bit of trivia:

“I’m Old Fashioned” is a 1942 song composed by Jerome Kern, with lyrics written by Johnny Mercer. It was written for the film You Were Never Lovelier (1942), where it was introduced by Nan Wynn who dubbed for Rita Hayworth as part of a song and dance routine with Fred Astaire.

Here’s how that sounded in 1942 – a song for those who hope beyond hope that nothing ever changes, or that if things change, one can always go back to what was once good and pleasant, because some things, the good things, don’t ever change. Think of it as a MAGA song with the politics removed. But it fit the times. Hitler and his Nazis had overrun most of Europe. The Japanese had bombed Peral Harbor. The world was falling apart. The world might end.

The song was a hit. Everyone has recorded a version of it, even John Coltrane. But it’s sappy nostalgia. Things change. Don’t tell Donald Trump, but they do, and this was not a year for traditionalists. He’s trying to get reelected, but things changed. That coronavirus came along, and now, to be safe, there are too many ways to vote that have nothing to do with showing up at a specific polling place on a specific Tuesday and just voting, the old-fashioned way, like in the song. Vote early? Mail in your ballot? Republicans hate that sort of thing. Donald Trump hates that too. They went to court stop this nonsense. They just lost. The Washington Post’s Robert Barnes covers that:

Democrats won two significant Supreme Court victories involving voting deadlines in key battleground states Wednesday, as the justices allowed extended periods for receiving mail-in ballots in Pennsylvania and North Carolina.

They declined to disturb decisions that allow Pennsylvania officials to receive ballots cast by Election Day and received within three days, and a ruling by North Carolina’s elections board that set a grace period of nine days.

In both of the cases, the Republican Party and GOP legislators had opposed the extensions, and President Trump has railed on the campaign trail about the mail-in vote.

But this isn’t Trump’s personal court yet:

Three conservative justices – Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch – objected in both cases.

New Justice Amy Coney Barrett did not to participate in either case. Her decision did not signal a blanket recusal in election cases involving Trump, who nominated her, as Democratic senators sought for her to pledge during the confirmation process. Instead, Barrett indicated through a court spokeswoman that the cases needed prompt decisions and that, having started work Tuesday, she did not have time to fully review the legal arguments.

But she cannot put this off forever. She’s loyal to Trump or she isn’t. And things are heating up:

The court in the past few days has confronted deadline extensions for mail-in ballots in three states. It did not allow one in Wisconsin championed by Democrats. The seemingly contradictory decisions appeared based on a difference noted by Chief Justice John G. Roberts Jr.: that the court should be reluctant to approve changes imposed by federal judges, as in Wisconsin, but view those imposed by state courts or agencies differently, as was the case in Pennsylvania and North Carolina.

That’s an arcane point, but it will be trouble:

The issue in Pennsylvania, a state that proved vital to Trump’s election four years ago and is key to his reelection, might not be settled.

Thomas, Alito and Gorsuch signaled that they might want to revisit the case after the election, and even indicated the votes received after Election Day ultimately might not be counted.

The three penned a statement criticizing the ruling by the Pennsylvania Supreme Court that called for three extra days to receive mail-in ballots because of the crush of requests brought on by fears of the coronavirus pandemic, writing that it was probably unconstitutional.

“There is a strong likelihood that the State Supreme Court decision violates the Federal Constitution,” wrote Alito.

“The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.”

In theory, a few days after the polls finally close, the Supreme Court could order Pennsylvania to toss out all mail-in ballots that the post office just could not deliver on time, no matter how early they were sent. When did the postal service deliver them? That’s all that matters, and that’s the plan:

Trump on Wednesday said at a news conference that he was depending on courts to keep states from counting ballots received after Election Day, even those clearly postmarked before then.

“Hopefully the few states remaining that want to take a lot of time after November 3rd to count ballots, that won’t be allowed by the various courts,” the president said.

Perhaps he’s right. But the courts could surprise him. This or that voter did everything right, and mailed in their completed ballot three full weeks before Election Day. The postal service somehow took five weeks, not two or three days, to deliver this first-class item. Why is that the voter’s fault? Why was their vote tossed out?

Dana Milbank knows why:

This election isn’t just to choose a president and a Congress. It’s a referendum on the right to vote itself.

The once-proud Republican Party has determined, correctly, that its only way to prevail in this election is to keep people from voting. Republicans and their allies have devoted some $20 million to wage more than 300 court fights across the country either to strike down election rules that encourage higher voter turnout or to fight lawsuits aimed at easing voting, according to the Center for Public Integrity.

That’s the plan:

Republicans have won the popular vote for the presidency only once since 1988, and the Senate Republican majority has for years represented a minority of the population. But they have used this minority rule to stack the judiciary, including six of the nine Supreme Court justices. Now Republican billionaires are financing a legal war to block voting rights – and the judges the minority Republicans installed on the courts are trying to shield Republican power from the will of the people.

The only way to break this corrupt scheme is with a popular backlash that overruns the voter-suppression roadblocks.

The only answer is a landslide, to counter this sort of thing:

The Republicans’ legal effort is, the Campaign Legal Center noticed, a cut-and-paste job using the same false claims of widespread voter fraud, coast to coast. The fraud claims almost always fail, but Republican-appointed judges frequently find justification to strike down attempts to allow people to vote safely during the pandemic.

Even as Republicans were celebrating the confirmation of Justice Amy Coney Barrett on Monday – eight days before Election Day and after some 70 million had already voted – the Supreme Court sided with the Republican Party in saying that Wisconsin could not count ballots received after Election Day even if they were postmarked before. Never mind that Trump’s man running the Postal Service, a GOP megadonor, has sabotaged postal operations for that very reason.

But there’s more:

Days earlier, the Supreme Court’s Republican-appointed majority agreed with Republican officials in declaring that Alabama can eliminate the practice of curbside voting for people with disabilities and others vulnerable to COVID-19 — even though state law does not forbid such a practice.

A few days before the Alabama decision, the Supreme Court said it would quickly consider the Trump administration’s proposal to exclude undocumented immigrants from the census — thereby suppressing the count in Democratic, urban areas — rather than let stand an appellate decision rejecting the proposal.

A few days before that, the Supreme Court allowed the Trump administration to end the census count immediately, despite evidence that this would lead to an undercount of minority groups.

Days before that, the court sided with South Carolina Republicans in saying mail-in ballots must be signed by a witness.

This list goes on and on, because of this:

It’s easy to see what’s going on here. Republicans can’t win a popular majority in the racially diverse and urban modern America. Trump himself has acknowledged that, at higher voting levels, “you’d never have a Republican elected in this country again.”

That explains what they’re up to:

Republican officeholders and allied judges use their power (derived from an electoral college and a Senate structure designed when 95 percent of Americans lived outside of cities) to suppress the urban and suburban multiracial majority. They block rehabilitated felons from getting voting rights restored. They fight ballot drop boxes and cause long hours for voting. They restrict the Postal Service and limit polling places. They restrict dissemination, collection and processing of mail-in ballots. New York University’s Brennan Center for Justice says 206 voting cases are pending, on appeal or subject to appeal.

Republicans even boast about their anti-democratic abilities. Senate Republican Leader Mitch McConnell, before Barrett’s confirmation, bragged that even if Republicans lose the election, “the other side won’t be able to do much about this for a long time to come.”

He’s taunting you, voters.

The only answer is a landslide. But this is what these people have to do. That’s all they have. Trump’s “closing argument” for reelection is too odd. The New York Times’ Alexander Burns covers that:

As an immense new surge in coronavirus cases sweeps the country, President Trump is closing his re-election campaign by pleading with voters to ignore the evidence of a calamity unfolding before their eyes and trust his word that the disease is already disappearing as a threat to their personal health and economic well-being.

The president has continued to declare before large and largely maskless crowds that the virus is vanishing, even as case counts soar, fatalities climb, the stock market dips and a fresh outbreak grips the staff of Vice President Mike Pence. Hopping from one state to the next, he has made a personal mantra out of declaring that the country is “rounding the corner.”

Mr. Trump has attacked Democratic governors and other local officials for keeping public-health restrictions in place, denouncing them as needless restraints on the economy. And venting self-pity, the president has been describing the pandemic as a political hindrance inflicted on him by a familiar adversary.

“With the fake news, everything is Covid, Covid, Covid, Covid,” Mr. Trump complained at a rally in Omaha on Tuesday, chiding the news media and pointing to his own recovery from the illness to downplay its gravity: “I had it. Here I am, right?”

And that’s his closing argument:

His determination to brush aside the ongoing crisis as a campaign issue has become the defining choice of his bid for a second term and the core of his message throughout the campaign’s endgame.

And it’s not working:

The stock market, long the focal point of Mr. Trump’s cheerleading efforts, plunged by more than 900 points on Wednesday, suffering its worst drop in months as investors grappled with the mounting disruptions wrought by the pandemic. Polling and interviews with voters show that most are not inclined to trust Mr. Trump’s sunny forecast.

Mr. Trump’s description of the disease is ungrounded in fact, and his theory of countering it has clashed with the preferences of medical officials at every level of government. The country has reported more than 8.8 million cases of the coronavirus, including a 39 percent increase in new cases over the last 14 days. More than 227,000 Americans have perished from the disease.

In Bullhead City, Ariz., on Wednesday, Mr. Trump promised voters that a vaccine would be available “momentarily,” though scientists and pharmaceutical companies say no such breakthrough is assured. Using a phrase that has become a refrain for him at rallies, he insisted the country was “rounding the turn” on the virus.

Only the core of the core of his base believes any of that now:

In Wisconsin, which on Tuesday reported record totals for new cases and deaths, a Marquette University Law School poll published Wednesday showed that 58 percent of voters there disapproved of the president’s handling of the pandemic. Mr. Biden was leading Mr. Trump in the crucial state by five percentage points.

Like much else about Mr. Trump’s mode of leadership, his view of the pandemic has found an enthusiastic audience from a minority of the country. A national poll published recently by The Times found that nearly two in five voters agreed with Mr. Trump that the worst of the crisis was over. The president’s push to fully reopen the economy is not without appeal, at least to the voters who already support him, and they have remained loyal through various personal and political scandals, policy breakdowns and an impeachment trial.

But polls show that far more Americans are rejecting the Trump approach. In the same Times survey, most voters said that the worst of the pandemic was still ahead, including half of independent voters and a fifth of Republicans. By a 12-point margin, voters said they preferred Mr. Biden to lead the response to the pandemic rather than Mr. Trump. And 59 percent of voters said they favored a national mask mandate, including majorities of Democratic and independent voters, and three in 10 Republicans.

Yes, this isn’t working:

Some senior federal officials have pushed back in recent days against the president’s rhetoric about the coronavirus and his false claims that case counts are going up only because testing has increased. Mr. Trump has often spoken about testing as a kind of public-relations problem, shifting line graphs that track the virus in an unhelpful direction for him.

In a television interview Wednesday, Adm. Brett Giroir, the administration’s testing czar, rebutted Mr. Trump’s characterization of the pandemic without chiding the president by name. The rising case count, he said, was “not just a function of testing.”

“Yes, we’re getting more cases identified, but the cases are actually going up,” Admiral Giroir said, urging Americans to wear masks and avoid clustering indoors.

Even his own people are saying, politely but publicly, that this man is full of shit, and the Washington Post sees this:

President Trump pushed ahead Wednesday with a strategy for the closing days of the campaign that minimizes the threat from the coronavirus pandemic, misstates his record in confronting it and mocks Democratic nominee Joe Biden’s caution in campaigning amid a disease that has killed more than 225,000 Americans.

That’s it. Things might be bad, maybe, but look at Joe:

Biden holds small, carefully staged events where he typically wears a mask and asks attendees to stand far apart. He blames Trump for failing to check the spread of the virus and calls the election a referendum on Trump’s leadership during the crisis.

Trump tells crowds that the pandemic is nearly over and that precautions such as school closures are themselves dangerous, while he assembles tens of thousands of people for political rallies despite mandates and public health advice against large gatherings…

“Normal life will fully resume. That’s what we want, right? Normal life,” Trump said.

He’s old fashioned and he doesn’t mind that at all, and he knows you don’t mind that either. Or maybe none of this really matters at all. Politico reports this:

Trump aides and allies increasingly acknowledge that anyone who is seriously concerned about the virus threat won’t vote for Trump anyway. The campaign is not changing any of its political strategy, including its messages to address the surging Covid-19 cases throughout the Midwest and rural areas – or the new outbreak among officials in the vice president’s office.

“If you think Covid is a big deal, then you are not voting for the president,” one former senior administration official said. “We’ve gotten through the president of the United States having Covid. I don’t think Marc Short having Covid is a game changer,” the official added about the vice president’s chief of staff, who is currently in quarantine after getting a positive test result on Saturday.

They have, after all, read the minds of the people:

Trump campaign officials have justified their relative indifference toward Covid-19 by claiming the economy is on the forefront of voters’ minds in the final sprint to Election Day, even as states including Wisconsin, North Dakota and Montana see record daily case counts and polls show older Americans are more interested in halting the spread of the virus compared to other issues.

“Regardless of cases going up, people are just sick of this shit,” said a person close to the Trump campaign. “It’s been eight months now and there’s coronavirus fatigue setting in. Three months ago, people said their No. 1 issue was the virus. But now they say it’s the economic recovery.”

No, they don’t:

The latest polls show a challenging picture for Trump’s message. An average of 57.5 percent of Americans disapprove of the Trump administration’s handling of Covid-19, according to the polling tracker by the site FiveThirtyEight.

Roughly 56 percent of Americans said they were worried about the public health concerns associated with Covid-19, whereas 34 percent of Americans said they worried about the coronavirus’s effect on the stock market and unemployment, according to a POLITICO/Morning Consult poll last week.

Trump campaign officials will have to account for that, and won’t. And that leaves what Doyle McManus sees here:

As President Trump has barnstormed battleground states in a frenzy of final campaign rallies, he hasn’t offered voters much of a plan for defeating the coronavirus (“We’re learning to live with it,” he says) or reviving the economy (“We’ve recovered”).

Instead of offering solutions for the disasters on his watch, most of his message focuses on fear of the catastrophes he predicts if Joe Biden is elected.

“Biden and the Democrats will offshore your jobs, dismantle your police departments and dissolve your borders,” he claimed in Ohio. All three charges are false; those aren’t Biden’s positions.

My favorite: “If Biden wins, the flag-burning rioters on the streets will be running your federal government.” Even red-hat-wearing Trump fans might not swallow that one.

And he’s telling voters – again without foundation – that their retirement savings will vanish if Biden is elected.

If the Democrat wins, he said in North Carolina, “Your stocks, your 401(k) and pension will be demolished.”

“Your 401(k)s will be cut in half and much worse,” he warned in Arizona.

“Throw them away,” he added in Ohio.

In short, he’s got nothing, but Biden would destroy America and the world and the known universe, and your 401(k) too. But that’s an odd message:

Polling from 2016 and other elections shows that ideology, religion, education and geography are all greater influences on the way people vote than wealth.

Wealthy liberals tend to vote Democratic; low-income conservatives tend to vote Republican.

But not in Trump’s view of the world. At last week’s presidential debate in Nashville, the president was asked, as his closing argument, to describe how he would reunify a divided country.

His answer was solely about dollars and cents – and Biden.

It’s not much of an argument.

But what else is there? Wait. That’s easy. Toss out all those votes. Round THAT turn.

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Courting Disaster

Donald Trump will have a second term in the White House. Donald Trump will win the upcoming election even if he loses the upcoming election. That’s the plan. He won the last time even if Hillary Clinton got three million more votes than he did. He had just enough of the Electoral College votes to win it all. The presidency is not decided by popular vote. It never was and, without a constitutional amendment, it never will be. That’s by design. The popular vote is advisory. States nominate “electors” to do the actual electing. They take the popular vote under advisement – in theory. But they always have done the right thing. These electors do not reject the will of the people of their states. .

That wasn’t the problem the last time around. It was just that there were too few of these electors. Their vote has always been a crude approximation of the popular vote. Couple that with the winner-takes-all system that awards all of almost all states’ Electoral College votes to the “winner” – so a fifty-one percent win yields all of that state’s Electoral College votes. Forty-nine percent of the will of the people suddenly disappears. That made Donald Trump president.

But that can get tricky, and that’s not the plan this time. Forget the popular votes. Forget all that arcane Electoral College stuff. Donald Trump will use the courts. His new very own Supreme Court will declare him president. He’ll move beyond all that voting nonsense.

Slate’s Mark Joseph Stern sees this:

As the Senate was voting to elevate Amy Coney Barrett to a lifetime position on the Supreme Court on Monday night, the immediate stakes for the entire country were made suddenly clear by a critical election ruling from the court she now joins. On Monday night, Justice Brett Kavanaugh released a radical and brazenly partisan opinion that dashed any hopes he, as the Supreme Court’s new median justice, might slow-walk the court’s impending conservative revolution, while also threatening the integrity of next week’s election.

In an 18-page lecture, the justice cast doubt on the legitimacy of many mail ballots and endorsed the most sinister component of Bush v. Gore.

America’s new median justice is not a friend to democracy, and we may pay the price for Barrett’s confirmation in just eight days.

That’s rather alarmist, but the facts are these:

Monday’s order from the Supreme Court blocked a federal judge’s order that had tweaked Wisconsin’s voting laws in light of the pandemic. The judge directed election officials to count ballots that were postmarked by Election Day but received by Nov. 9, finding that the unprecedented demand for mail ballots combined with Postal Service delays could disenfranchise up to 100,000 voters. An appeals court blocked his decision on Oct. 8, and on Monday, SCOTUS kept it on hold by a 5–3 vote. The court offered no majority opinion, but Chief Justice John Roberts, Justice Neil Gorsuch, and Kavanaugh all wrote concurrences. Justice Elena Kagan penned a trenchant dissent joined by Justices Stephen Breyer and Sonia Sotomayor.

They wouldn’t rule until Amy Coney Barrett shows up for work, so they let the ban stand for now, but Kavanaugh’s opinion was a bit odd:

In one passage, Kavanaugh attempted to defend the Wisconsin law disqualifying ballots received after Election Day. He pointed out that “most States” share this policy, explaining:

“Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election. And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.”

Kavanaugh then quoted New York University law professor Richard Pildes stating that the “longer after Election Day any significant changes in vote totals take place, the greater the risk that the losing side will cry that the election has been stolen.” (Kavanaugh was quoting an article in which Pildes encouraged states to extend their ballot deadlines, directly contradicting Kavanaugh’s argument.)

And this was nonsense:

In at least 18 states and the District of Columbia, election officials do count ballots that arrive after Election Day. And, in these states, there is no result to “flip” because there is no result to overturn until all valid ballots are counted. Further, George W. Bush’s 2000 election legal team – which included Barrett, Kavanaugh, and Roberts – argued during that contested election that ballots arriving late and without postmarks, which were thought to benefit Bush, must be counted in Florida…

Late-arriving ballots have handed the election to a candidate who was behind on election night on many occasions in the United States – most recently, in multiple California congressional races in 2018. Two years ago, California anticipated this possibility after extending the deadline for mail ballots, a move that signaled no chicanery. Yet Republicans seized upon it to delegitimize multiple Democratic victories.

And they lost all their arguments in court, not that this matters now:

President Donald Trump has taken voter fraud allegations to a dangerous new extreme, repeatedly rejecting the validity of mail ballots that arrive after Nov. 3. Indeed, roughly 15 minutes after Kavanaugh’s opinion came down, Trump tweeted: “Big problems and discrepancies with Mail In Ballots all over the USA. Must have final total on November 3rd.”

Twitter concealed his tweet with a warning its content is “disputed and might be misleading about how to participate in an election.”

But there is nothing Twitter, or anybody else, can do to warn Americans about Kavanaugh’s lies about “chaos and suspicions of impropriety” when states try to count every ballot next month.

But wait, there’s more:

While referencing an earlier case, Kavanaugh dropped a bombshell in a footnote: He endorsed an argument that was too extreme for even the Bush v. Gore majority that decided the 2000 election, one that would give the Supreme Court the wholly new right to overrule state courts on their own election laws. In Bush v. Gore, three justices – William Rehnquist, joined by Antonin Scalia and Clarence Thomas – tried to overturn the Florida Supreme Court’s interpretation of the state’s own election law. As a rule, state Supreme Courts get final say over the meaning of their own state laws. But Rehnquist, Scalia, and Thomas argued that SCOTUS must review their decisions to ensure they comply with the “intent of the legislature.” In other words, the Supreme Court gets to be a Supreme Board of Elections that substitutes state courts’ interpretation of state law with its own subjective view of a legislature’s “intent.” Anthony Kennedy and Sandra Day O’Connor balked at this theory, refusing to sign onto it.

Yet Kavanaugh cited Rehnquist’s concurrence as if it were precedent. As Rehnquist “persuasively explained in Bush v. Gore,” Kavanaugh wrote, “the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.”

He was citing a theory that appalled almost all conservatives, who had rejected it years ago, but things are changing:

Rehnquist’s concurrence garnered just three votes, so it is not precedent at all. Neither, for that matter, is the majority decision in Bush v. Gore, which warned future courts never to rely on it as precedent. To set a good example, SCOTUS itself has never cited any part of Bush v. Gore as precedent. Its opinions are ghosts that haunt modern constitutional law. Yet Kavanaugh just declared in a footnote that he not only agrees with Rehnquist but actually views his opinion as bona fide precedent…

Roberts distanced himself from Kavanaugh’s position on Monday, but Barrett’s confirmation renders his views largely irrelevant. We can probably expect Kavanaugh, along with Thomas, Alito, Gorsuch, and now Barrett, to smack down state Supreme Courts that try to expand voting rights, or even just count every ballot.

This will not end well:

The most generous explanation of Monday’s frightening opinion is that Kavanaugh started to defend his vote in these election cases and got carried away, digging a deeper hole for himself as he tried to respond to the unanswerable rejoinders in Kagan’s dissent.

The most pessimistic view is that Kavanaugh knows exactly what he’s doing: laying the groundwork to reject enough ballots to hand Trump an unearned second term while daring Democrats to do something about it.

The pessimistic view seems best here, but there are workarounds:

Wisconsin Democrats and the Democratic secretary of state of Michigan are urging voters to return absentee ballots to election clerks’ offices or drop boxes, warning that the U.S. Postal Service may not be able to deliver ballots by the Election Day deadline…

Wisconsin Democratic Party chair Ben Wikler tweeted after the Supreme Court ruling: “We’re phone banking. We’re text banking. We’re friend banking. We’re drawing chalk murals, driving sound trucks through neighborhoods, and flying banners over Milwaukee. We’re running ads in every conceivable medium.”

Michigan Secretary of State Jocelyn Benson said in a statement: “We are too close to Election Day, and the right to vote is too important, to rely on the Postal Service to deliver absentee ballots. Citizens who already have an absentee ballot should sign the back of the envelope and hand-deliver it to their city or township clerk’s office or ballot drop box as soon as possible.”

This would render Kavanaugh’s argument moot, for now. That’s the real issue. What’s next? Richard Hasen, the professor of law and political science out here at the University of California at Irvine, suggests a few things:

Should we panic about Justice Brett M. Kavanaugh’s concurring opinion in the Wisconsin voting case that the Supreme Court decided Monday night? Does it mean that the Supreme Court is going to do something crazy that will hand the election to President Trump even if Joe Biden is ahead in the count?

The short answer is that an intervention by the Supreme Court to decide the presidential election is still extremely unlikely – but if the extremely unlikely happens, there’s great reason to be worried about the court’s protection of voting rights and the integrity of the vote.

So, worry a little, but not just yet:

I did not expect the Wisconsin ruling to be a major one. The Supreme Court had sent a consistent signal before deciding this case that federal courts should not be easing voting rules even during the pandemic and that there should be deference to state rules. A federal-district court had extended the deadline for the receipt of absentee ballots in Wisconsin because of delays in delivering mail during the pandemic, but the U.S. Court of Appeals for the 7th Circuit, following the Supreme Court’s lead, reversed that order. Democrats and voting rights groups, inexplicably thinking they would do better before the voter-hostile Supreme Court, took the case up and lost Monday night.

So, the result – another 5-3 split along party and ideological lines, with conservatives on the court once again siding with the state against those expanding voting rights – was no surprise.

But there was a surprise:

Kavanaugh suggested without evidence that there would be a problem if voting results were not final on election night and results of the election could “flip” to another candidate, even though vote totals are never final on election night and require weeks to count. As a veteran of Bush v. Gore, Kavanaugh surely knows this; he may have even been involved in efforts in the weeks after the vote took place in Florida in 2000 to make sure that late-arriving military and overseas absentee ballots would be included in the state’s vote totals. The statement about vote totals this fall was unnecessary to his legal argument, and it served only to echo Trump’s false talking points about mail-in ballots.

And that’s a worry:

The overall tenor of Kavanaugh’s opinion was not only dismissive of voting rights, but it also appeared to suggest that decisions to limit counting and enfranchisement are constitutionally mandated. If Barrett does not recuse herself from election disputes next month, there’s every reason to worry that a 5-4 court could interfere in the election to help Trump if a case that might swing the outcome gets before the court.

Yes, but:

So why not panic about all of this? Mainly because the chances of the election being decided by the Supreme Court are very slim. Biden appears comfortably ahead in the polls; it is far from likely that the election would come down to Pennsylvania – or, even if it did, that Pennsylvania will be within the margin that litigation of the election could swing. The result would have to be super close in both the electoral college and popular vote in the state pivotal for the electoral college outcome for a court case to be a plausible way to contest the election. And even then, there may be reasons – not the least of which is the legitimacy of the Supreme Court itself and of its newest justice, who already took her seat under circumstances that left Democrats howling – that the court would seek to avoid deciding the outcome of the election. It could instead come down to a resolution of disputes by Congress, which could well be in Democratic hands by the time electoral college votes are counted in January.

Looking beyond this election, though, it is hard to escape the fact that the Supreme Court is poised to allow Republican states to engage in all manner of voter suppression in the name of protecting the rights of state legislatures. This is true not just in election contests but in other cases that raise issues under the Voting Rights Act and the Constitution.

That is something to panic about. But perhaps for everyone’s sanity we can put off worrying about that until after we get through the election.

Worried yet? Try a bit of Greg Sargent:

Another possibility might be that the high court finds a way to halt the counting of mail ballots even if they arrived on or before Election Day. Kavanaugh’s ruling also vaguely declared that if the results aren’t announced on or right after Election Day, it might create “suspicions of impropriety.”

This could theoretically be twisted into a rationale for halting a post-Election Day count.

That declaration is absurd, since the whole point of allowing for weeks to pass before certification is to avoid such suspicions. And as election expert Rick Hasen notes, there isn’t any result to cast doubt upon until all votes are counted.

“The reality is that we never know an official winner on election night,” Hasen said.

Trump says that is unacceptable. Brian Beutler says this:

President Trump has mused openly that he will challenge election results in court, and even that he’s likely to prevail over the will of the public if the Senate hurriedly confirms his last-minute Supreme Court nominee, Amy Coney Barrett.

Trump’s open flirtation with overturning the election and serving a second term at the behest of five right-wing Supreme Court justices has understandably invited his opponents to think through nightmare scenarios, where he somehow manages to pull this off. But even the most grim conjectures tend to miss a key ingredient Trump and his allies would need to carry out a scheme like this: a pretext, with a facially plausible legal basis, for throwing out not just handfuls of ballots but entire categories of them.

And that would not be wise:

Any scheme like this would meet legal resistance, and extraordinary political backlash. People would flood the streets. Democratic lawyers and voting-rights lawyers would argue that throwing out entire categories of votes would violate the rights of voters who relied on the rules as they were written at the time of the election…

Courts would have to be unabashed in their partisanship to help Trump pull this off. Lower courts, and ultimately the Supreme Court, would have to run roughshod over norms and the law to spoil ballots after they’ve already been stirred into the pot, and doing that would cashier whatever remains of their legitimacy in the public’s eye.

That may or may not bother them, but still, there’s this:

The power to discredit Trump’s underlying premise – that partisan courts and free-agent electors, loyal to the president, should dictate the winner of the election – rests with engaged citizens. Trump and his supporters haven’t committed to any particular species of legal challenge, but they have stood squarely behind the idea that his allies on the court should say which votes count and which don’t, and that they should do so in a way that guarantees him a second term. It’s ultimately voters, spurred to action by their leaders, who have the power to reject this premise, by handing Trump a defeat outside the “margin of litigation,” and by preparing to march peacefully, day after day, if and when tries to disenfranchise them anyhow.

The best way to help people do that is to alert them in advance to what Trump’s legal schemes might look like in practice, frame them before he can, so that he loses two key advantages: the power to misleadingly shape public perception, and the element of surprise.

Okay, you’ve read this. Mission accomplished.

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