It’s not something we want to think about but it’s important to gird ourselves to the possibility that Trump and his accomplices will try to steal the election through the courts. Some of the decisions we’ve seen come down already give us a hint of the possibilities. Brian Beutler takes a look at some of them, beginning with the horrifying possibility that the court will rule that all the votes in a particular state must be thrown out because of some alleged “taint” and a right wing legislature instead chooses the winner. Oh my God …
Most voting-rights supporters cheered this week’s 4-4 Supreme Court decision to shelve a GOP challenge to Pennsylvania’s extended absentee-ballot deadline. That decision leaves in place a state supreme court ruling that should allow Pennsylvania to count ballots that arrive by November 6, so long as they aren’t postmarked after Election Day. In reaching that determination, the state court overrode state law to vindicate the state-constitutional voting rights of Pennsylvanians, which have been threatened by pandemic conditions and intentional efforts to slow mail delivery.
But the fact that four sitting Supreme Court justices wanted to reach into Pennsylvania’s affairs and possibly overturn that state-court ruling troubled legal experts. They noted that the composition of the Court will soon change, and Barrett will likely side with the four most conservative justices on legal challenges Trump and the GOP might bring after the election—including to those late-arriving absentee ballots in Pennsylvania.
There should be an easy remedy to this problem: Vote early, make your ballot impossible to challenge. That’s wise advice voters everywhere should follow. But in Pennsylvania, some ballots will still inevitably arrive after Election Day, and the remote-but-terrifying risk is less that they’ll be discarded, than that the Supreme Court will declare them deficient after they’ve commingled with the larger pool of unchallenged votes. With no way to distinguish “valid” ballots from ones the Court has invalidated, the state Republicans who spoke to Gellman would have the real, actionable pretext they need to declare the election tainted, and seek to appoint electors who would loyally cast votes for Donald Trump. The missing piece will fall into place.
That sounds bad, but as Beutler points out this would not go unchallenged and the public disapprobation would be extreme. He quotes election-law expert Rick Hasen saying that it’s extremely unlikely that any court would step in once the votes have been co-mingled. He thinks this is the most unlikely scenario. However:
In other words, 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. But this is a problem we’ve seen with GOP-dominated courts in less high-profile cases over and over again: if they’re shameless enough, there’s nothing to stop them.
Shameless? Republicans? Yeah …
Beutler points out that it’s even possible that Republicans have purposefully comingled potentially “tainted” ballots with legitimate ones for the express purpose of creating lawsuits in a friendly circuit. In Florida, for instance, they changed rules after the voting had already started, potentially creating this very situation. If there’s one place I could see such a nefarious scheme taking place, it’s there.
Slate legal writer Mark Joseph Stern noted that though this guidance lacks support in state law, it may nevertheless form the basis of a GOP legal challenge. “Presuming supervisors ignore McVay’s guidance, Florida’s largest counties will collect a huge number of absentee ballots in a manner deemed unlawful by the Department of State,” he writes. “If Joe Biden narrowly wins the state in November, Florida’s Republican-controlled government could argue that these ballots should be thrown out because they were cast through an illegal process. That claim could give rise to litigation that might allow the federal judiciary to call election results into question and invalidate ballots.”
As in Pennsylvania, though, the biggest risk may not be that Trump and the GOP will successfully challenge some ballots. It’s that those invalid ballots will have been irretrievably commingled with unchallenged ones. Republicans wouldn’t succeed in helping Trump throw out Democratic votes; they’d succeed in making a full count impossible.
Beutler explains why it’s important to think this through:
Indeed the purpose of gaming out possible schemes like this, however unlikely they are to succeed, is to pre-empt them, so they don’t catch the public and the media unaware, and so they aren’t mistaken for anything other than naked and illegitimate efforts to steal an election.
In theory, the state officials themselves could pre-empt this kind of chicanery—by segregating out ballots in states like Pennsylvania that are likely to be challenged, or by declaring that voters in states like Florida will not be punished for following the rules. And even after adverse Supreme Court rulings, the political and legal battles over which candidate is entitled to contested state electoral votes would continue, particularly in states with Democratic administrations, and Republican legislatures—including the key states of Pennsylvania, Michigan, Wisconsin, and North Carolina.
[…]
But ultimately 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.
He’s right, of course. But I would just ass that the “marching day after day” will be met with a right wing backlash in which the Trump people will say the Democrats are refusing to accept the results of the election and are staging a coup. They will take to the streets as well. And they will probably be armed.
Let’s hope it doesn’t come anywhere near that. If the election results are “outside the margin of litigation” we might just be able to have a normal transition. If not, all bets are off.
Update: this is a good point
This is an important observation. So far, we’ve seen the conservatives on the court deciding they can’t intervene in state election decisions when it benefits Republicans and also intervening when it … benefits Republicans. Justice Roberts was the swing vote — he voted to not intervene in both situations. But I think we know where Coney Barrett will come down, don’t we?
This could be a huge, huge mess.