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.

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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