Trump wants the courts to stop the counting. He’s
going to be disappointed.
Opinion by
Contributing columnist
November 4, 2020 at 2:05 p.m. CST
President
Trump can rail as much as he likes, but he can’t stop the counting of valid
votes. And while he is threatening to race to the Supreme Court to overturn any
result against him, that, too, is likely to be a losing play — even with the
bolstered conservative majority.
In his
remarks early Wednesday morning, Trump seemed to suggest that the court might
halt the counting of all ballots that remain untallied. That is sheer nonsense.
The vast majority of uncounted ballots suffer from no legal infirmity
whatsoever. Many arrived at their local election offices weeks ago, piling up
waiting to be counted because of misguided state laws that did not permit the
process to start until Election Day or, in the case of Michigan, the day before.
The
fact that local officials could not make it through the unprecedently large
pile in a single day is no basis for discarding those ballots — or for
disenfranchising the eligible voters who properly cast them. There is not one
iota of possibility that the U.S. Supreme Court, or any court, would disqualify
those ballots.
These
ballots are not the hanging chads of Bush v. Gore. That case
involved something genuinely susceptible to judicial determination: whether it
was a violation of the equal protection clause of the Constitution for
identically cast Florida ballots to be treated differently in a statewide
recount depending on whether they were in Miami or Palm Beach.
That’s
not the situation now. The remaining uncalled states, where not even unofficial
winners have been projected by the media, are not yet in a recount situation. Vast
numbers of ballots have not yet been counted for the first time. Until that
happens, it’s premature to imagine that this election, as in 2000, might be
decided in court.
Of
course, multiple lawsuits have already been filed, and more are surely on the way.
In Nevada, Republicans
challenged the methods for verifying voters’ signatures on mail-in ballots.
In Pennsylvania, a new
lawsuit by Republicans attacks efforts to help voters “cure” clerical
difficulties with mail-in ballot envelopes, such as whether they left the
ballots “naked” instead of using the required inner sleeve.
But
without knowing the margins of victory in particular states and the preliminary
electoral college tally, it is too early to say whether any of this litigation
matters. It could come to that, if it turns out there is a narrow slice of
disputed ballots in a state whose outcome could determine the election. In such
a situation, the federal courts and ultimately the Supreme Court could get
involved.
The
most likely such scenario involves Pennsylvania, and the counting of ballots
that were to arrive within three days after Election Day. The Pennsylvania
Supreme Court granted this three-day extension, the issue has already reached
the Supreme Court twice, and both times the court declined to insert itself.
If
Pennsylvania’s 20 electoral votes would determine the presidency, this dispute
takes on extraordinary new importance.
There
is a conceivable argument that the ballots falling within this three-day window
cannot be counted. The statute that the Pennsylvania legislature enacted on
this point explicitly declared that ballots must arrive by Election Day. The
Pennsylvania Supreme Court, relying on the state’s constitution, ruled that
this statutory deadline must be expanded by three days because of difficulties
created by the pandemic and problems with the U.S. Postal Service.
Republicans
have claimed that the state Supreme Court’s ruling violates the federal
Constitution, which grants the power to write rules governing elections to
state “legislatures.” The U.S. Supreme Court has yet to decide the question of
what, if any, authority that leaves to state courts; that’s the difficult and
important issue that it has ducked so far.
But
even if the court were to agree with the Republicans on their federal
constitutional claim, it is doubtful that a majority of justices — having
allowed the state court extension to remain in place — would also agree to
invalidate ballots that benefited from the extra time.
Courts
often talk about reliance interests and
have recognized that these are particularly important in the context of elections:
the ability of voters to know what the rules of the road are and to act
accordingly. Voters who relied on the state Supreme Court’s ruling were
complying with the law as it existed and they reasonably understood it. The
justices could correct the state Supreme Court’s error for the future and still
let these ballots be counted.
That
would be a wise way out for conservative justices. Neither the court nor the
country would benefit from the justices once again intervening to determine the
presidency — no matter how loudly Trump demands it.
