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.
Crooked
Enter the Supreme Court in Wisconsin and Pennsylvania.
It’s a scenario in which Barrett and the four most conservative sitting justices align on decisions that make it impossible for states to finalize results in the first instance, placing any plans to throw the election to Trump-loyal GOP legislatures on firmer ground.
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.
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[I]n 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.
Hence the just announced
decision to separate ballots by Pennsylvania election officials.
It is worth noting at this juncture that 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. Election-law expert Rick Hasen likewise cautioned me that “once ballots have been commingled, it is extremely unlikely a court will do anything about it.
It might have been messier, but might also have been less likely that people's votes would be thrown out.
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.
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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.
We've seen they are indeed shameless enough.
This concern about challenged ballots commingling with unchallenged ballots isn’t limited to Pennsylvania, and even raises the specter of Republicans engineering situations that allow them to circumvent vote counting: by kettling absentee voters into submitting ballots in ways and at times that leaves them vulnerable to legal challenges, waiting until those ballots have been commingled with the rest, and then declaring it impossible to determine the “legitimate” winner.
I don't know what that would get them. A new election? Do it over again?
Last week, the general counsel to the Florida department of state issued guidance to election officials asserting that secure ballot drop boxes must be staffed by humans at all times. Scores of thousands of ballots have already passed through drop boxes that do not meet this criterion.
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.
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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.
The 2000 election was stolen. And in essence, the electoral college and gerrymandering allow any election to be stolen. Where was our remedy for all that? Crickets.
[U]ltimately 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.
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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.
And I think you can count on people taking to the streets if (should I say when?) Trump and the GOP, and perhaps the Supreme Court, pull this shit.
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