There are times when President Donald Trump presents his unjust and anti-democratic motives so clearly that it can be strangely difficult to fully digest the implications of what he says.
Just five days after the death of Judge Ruth Bader Ginsburg, for example, Trump flatly announced his intention to occupy her seat on the Supreme Court in order to clear up his unsubstantiated allegations of widespread voting fraud in the November postal votes.
“I think this will end up in the Supreme Court,” he said on September 23 about efforts to expand access to postal votes. “And I think it is very important that we have nine judges.”
With the recent confirmation of Judge Amy Coney Barrett, Trump has already achieved some of the things he wanted. And the conservative bloc of judges who have already blocked access to voters, even last week, seems ready to do even more damage. Yet these judges seemed willing to abandon the traditional conservative principles of federalism.
On October 26, an October 5-3 court refused to admit absentee ballots from Wisconsin that were stamped by election day but were received for counting a few days later. In an embarrassingly flawed consensus statement, Judge Brett Kavanaugh absurdly claimed that the states “want to be able to finally announce the results of the election on election night. This is simply wrong.
While the media often use projection analysis to announce the winners on election night, states wait until all the ballots are counted-which usually takes a week or more before officially confirming a result. In fact, under federal law, military personnel and citizens from overseas have a window of several days to receive and count their ballots. In fact, no electoral law in any state requires that results be “final” on election day. In fact, about 20 states count mail received after election day, provided it is postmarked on or before election day.
Pennsylvania will be a state to watch after the election, especially to see what Barrett does, since she is likely to be the deciding vote if she does not withdraw from such cases. The Pennsylvania Supreme Court ruled that the Free and Fair Elections clause in the Pennsylvania Constitution mandates that for this election – due to delays in COVID-19 and postal delivery – postal ballots received within three days of the election should be counted unless it can be proven that they were sent after election day.
When the Republican Party petitioned the Supreme Court to suspend this ruling, the court reached an impasse at 4:4. This week the court denied the party’s request to decide the case before election day, but Judges Samuel Alito, Neil Gorsuch and Clarence Thomas explicitly left open the possibility that the court could decide the case when the Pennsylvania vote is pending. Depending on what happens in other states, this could mean that the court will decide on the presidential elections as in 2000. And these three judges, along with Kavanaugh, have all but declared that they are prepared to overrule the Pennsylvania Supreme Court on a question of state law, contrary to longstanding conservative admonitions that federal courts must usually rely on the states.
This would probably make Barrett – who was appointed the country’s highest court for life in the middle of this election – the potential fifth vote that would decide the president’s re-election fate. Although the conflict of interest is obvious, Barrett has refused to say that she would refuse to rule on cases involving this election.
As Trump proudly announced, the “elimination of ballots” is his key to re-election, the key to his “continuation. Of course, in the heat of an election campaign, politicians often speak in exaggerated and overloaded rhetoric. But this is different. A majority in the Supreme Court – a court whose decisions are final and cannot be appealed – seems willing to follow Trump down a dark path that is very dangerous for our democracy.
The voters should determine the outcome of this election, not the Supreme Court. It would be a violation of our democratic norms if the Supreme Court were to intervene and put its thumb on the scales if, after the election, it rejected ballots that were submitted by eligible voters before the end of the election because the voters followed the procedures in effect at the time of the vote. This would trigger a constitutional crisis of epic proportions that would make Bush vs. Gore look like a burst on the radar. Finally, at least in this case, there were questions about who the rejected votes were cast for.
This intervention by the conservative judicial bloc would be an attack on the very essence of our democracy that this Supreme Court would never survive.
Kristen Clarke is the president and executive director of the Civil Rights Lawyers Committee under the Act, which runs the Electoral Protection Agency, the nation’s largest and longest-running non-partisan voter protection program, anchored through the 866-OUR ELECTIONS hotline.
The views expressed in this article are those of the author….