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.”