Wednesday, October 28, 2020

BRETT KAVANAUGH’S WISCONSIN RULING LAYS THE GROUNDWORK TO HAND TRUMP THE ELECTION

 

BRETT KAVANAUGH’S WISCONSIN RULING LAYS THE GROUNDWORK TO HAND TRUMP THE ELECTION

The growing conservative majority on the Supreme Court shows its clearest sign yet that in the event of a close election, they're ready to help Trump win. 

BY ERIC LUTZ

OCTOBER 27, 2020

The political headwinds have been blowing hard against Donald Trump in recent months. Unable to do anything but aggravate the assorted crises facing America, the president trails Joe Biden in polls and none of his usual ploys seem to be helping him catch up. Indeed, foul memories of 2016 notwithstanding, all indicators seem to be pointing to a loss, possibly a humiliating one, for the incumbent.

But that assumes everything plays out above board—throw in some underhanded tactics, move the goalposts a bit, and the game starts to look a little different. The will of the American people only matters, after all, if everyone is able to give voice to that will on the ballot. The Trump campaign, meanwhile, is doing whatever it can to keep Americans in a few key battleground states from doing so. And with the help of Republicans and stacked courts, they could succeed.

The Trump campaign has been waging an unprecedented legal battle against mail-in voting—which is surging amid the pandemic—in states that could ultimately decide the race, seeking to limit votes that the president has repeatedly claimed, without any basis, would lead to widespread fraud and delegitimize the election. On Monday, they got perhaps their biggest victory so far: A 5–3 Supreme Court ruling that absentee ballots in Wisconsin must be received by Election Day or else they won’t be counted, even if the late arrival isn’t the fault of the voter. It’s a decision that could nullify thousands of votes in a state Trump narrowly won four years ago, and sow confusion just over a week before Election Day. And if that isn’t concerning enough, there’s the argument the Trump-appointed Supreme Court justices used to rationalize the ruling, a faulty justification that seems to have leapt from the president’s Twitter feed to the bench.

At issue in Wisconsin was a grace period for election officials to receive ballots sent through the mail, which has been facing delays thanks to the pandemic and to changes implemented by Trump’s handpicked postmaster general, Louis DeJoy, a big dollar GOP donor. As long as absentee ballots are postmarked by Election Day, they should be counted, Democrats and voting rights advocates argued. But the high court shot them down, with Justice Neil Gorsuch writing that the “last-minute changes” to the election rules would invite “confusion and chaos.” “No one doubts that conducting a national election amid a pandemic poses serious challenges,” Gorsuch wrote. “But none of that means individual judges may improvise with their own election rules in place of those the people’s representatives have adopted.” Concurring, Brett Kavanaugh went even further, arguing that late arriving ballots could prevent states from “definitely [announcing] the results of the election on election night," something that, as CNN’s Abby Philip noted, states do not do.

“States,” Kavanaugh wrote, “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.”

This is completely ludicrous. As Justice Elena Kagan wrote in her dissent, “there are no results to ‘flip’ until all valid votes are counted.” In other words, if thousands of votes haven’t been counted, the outcome has yet to be finalized. A run scored in the bottom of the ninth counts just as much as one scored in the top of the first. A go-ahead shot that goes in at the buzzer or a Hail Mary pass that’s caught in the end zone as the clock expires doesn’t overturn the results of the game—if the game isn’t over, neither team has won yet. But if Kavanaugh’s risible argument sounds familiar, it’s because it’s one Trump himself has been putting forth as part of his voter suppression campaign. “Big problems and discrepancies with Mail In Ballots all over the USA,” he tweeted Monday, the same evening the Supreme Court handed down its ruling. “Must have final total on November 3rd.”

But why? There is nothing that says the winner must be announced on Election Day; indeed, even if the media were to project the race on election night, nothing would become official until electoral votes are cast in December and the results are certified in January. With the race playing out against the backdrop of a deadly pandemic, Election Day could look more like Election Week or even Election Month and there’s nothing inherently wrong with that. But thanks to Trump, that could be exceedingly problematic. The longer the uncertainty drags on, the more opportunity he has to question its legitimacy or prematurely declare himself the winner. This is made all the more fraught by the dynamics of this election: Democrats are expecting massive turnout this cycle, driven in part by early and mail-in voting. Republicans, meanwhile, are expected to see most of their turnout on Election Day itself, November 3. These are all perfectly legitimate methods of voting, but absentee ballots could take longer to tally, leading to what observers have called a “red mirage”: a scenario in which Trump appears to be winning, only to see that lead evaporate and give way to a Biden victory after all votes are counted. In pressing for a winner to be declared on the evening of the election, Trump appears to be hoping to be able to declare victory and for votes that would erase his bogus lead to be tossed; in his Wisconsin argument, Kavanaugh is signaling that he would go along with it.

That the conservatives delivered a victory for Trump—and handed voters a loss—in Wisconsin is concerning enough. But anxiety over the Monday night ruling was compounded by the confirmation of Amy Coney Barrett to the Supreme Court later in the evening. Rushed through the nominating process, Barrett not only poses a threat to abortion rights, civil rights, and access to healthcare, but she could play a deciding role in the election. As Slate’s Mark Joseph Stern pointed out, the first decisions she makes in her new job could be for cases similar to Wisconsin’s in Pennsylvania and North Carolina, two other crucial battleground states that could tip the election. For Trump and his allies, the hope is that she’ll help the court’s conservatives impose voting restrictions. The president is also plainly banking on having another friendly face on the bench after Election Day to resolve the race. “I think this will end up in the Supreme Court,” Trump said following the death of Ruth Bader Ginsburg in September. “And I think it’s very important that we have nine justices.” Given Trump’s remarks, Democrats pressed Barrett during her confirmation hearings to recuse herself from any election cases; she would not do so, nor would she say that Trump should commit to the peaceful transfer of power. Her swearing-in Monday night only exacerbated concerns, with the ceremony taking on the feel of a Trump rally. “The first thing Justice Barrett did was to participate in a campaign event at the White House for the president,” as MSNBC’s Chris Hayes put it, “eight days before an election that he has explicitly said he expects will turn on her vote.”

The hinge of history, then, may hang on this question of what wins out: The momentum Biden and the Democrats are riding against this deeply unpopular, out-of-control president? Or Trump’s court-approved underhanded efforts? The GOP has proven itself capable of governing from the minority, controlling Washington and the courts despite representing fewer Americans and losing five of the last six popular votes in presidential races. But Americans have also given reason for hope, in many cases defying unfair obstacles to the franchise in the early-going this cycle and breaking turnout records. He wouldn’t be working so hard to limit voting, after all, if he wasn’t so afraid of it. “When we vote, we overcome,” Wisconsin Democratic Party Chair Ben Wikler wrote Monday. “Our ballots are our defiance. They smash norms? We smash voting records.”

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