All For Want Of A Nail (or Mail?)

Republicans and President Donald Trump have repeatedly tried to sow doubt over the reliability of voting by mail, and Texas' Republican leadership has resisted expanding access to voting by mail during the pandemic. #TribFest20 https://t.co/tgvzBK5ue2

— Texas Tribune (@TexasTribune) September 21, 2020

Dan Crenshaw sent out a flier urging voters like me 65 (or older, who automatically qualify to vote by mail) to...vote by mail.

I've seen a lot of fevered imaginings (even in The Atlantic!) that Trump will somehow replay Bush v. Gore or, worse, get enough Republican state legislatures to decry the legitimacy of the election and directly appoint Trump electors regardless of the vote outcome.  This latter hinges on the idea that, unless AP can call the race by midnight on November 3, 2020, the vote is "illegitimate" and state legislatures will meet on November 4 (apparently) to vote.  The fundamental problem with this is attacking the legitimacy of the vote, because sauce for the goose is sauce for the gander.

If the vote in Texas, for example (a state where this won't happen because the legislature doesn't sit until 2021, and I don't see even Abbott calling a special session to get a slate of electors appointed for Trump if the vote count goes for Biden), is challenged because Trump cries "fraud!", it isn't challenged just for Trump.  What is the legitimacy of the election of any Republican?  I limit this to one party, because the scenarios are that one party will be challenging the vote.  If Republicans say their guy won but "fraud" occurred with counting votes on November 4 or later, how can they say any of their candidates won?  How can they say the vote count on November 3 is even legitimate?  (There is, by the way, nothing magic about vote counts reported by TeeVee or AP on election day.  No law recognizes votes counted on that day as the only legitimate vote count.)

Everyone points to Bush v. Gore, but among other things that case concerned only the recount of the Presidential vote in Florida.  And the real issue was the 19th century law requiring the vote count to be finished within 41 days of the election, something that the Florida Supreme Court said didn't have to happen as the Florida recount plodded its way to completion.  That's why the Supremes said Florida's court had overstepped its authority; the recount in the presidential race couldn't exceed the statutory limit.  If the GOP wants to challenge the legitimacy of the vote in several states, whether or not it involves the DOJ in such cases, how does that not challenge the legitimacy of every GOP race in that state?  If the votes for Biden are "fraudulent," aren't the votes for Trump equally fraudulent?  If the votes for Trump are fraudulent, what of the votes for Crenshaw?  Cornyn?  Anyone else on the ballot?

This is precisely why the courts don't get involved in election challenges to this level.  Bush v. Gore decided the 2000 race because the Court held the statute barred Florida from conducting a lengthy recount.  The consequence of any ruling on any electoral challenge can decide a race, but the courts don't declare a race "fraudulent" en masse and overturn a result.  No court is going to throw out votes legitimately counted within the 41 day window of federal law.  That's how Bush v. Gore affects this election.  And if the GOP does cry "foul" and "Fraud!," they call into question the legitimacy of every elected GOP official on the ballot.  Crenshaw can't ask voters to vote for him by mail, and then decry mail-in votes as fraudulent in court (he can on FoxNews, but not in front of a judge).  And the courts are not going to toss out mail-in ballots not handled according to state and federal law just because the DOJ or the GOP cry "foul!"  And if the GOP does open that Pandora's box, it will apply to them more harshly than it does Democrats, because the GOP will be asking for that relief, but only for them.  Except the law won't be that one-sided, and neither will public opinion.

And there is no federal law requiring a final vote count within 41 days for Representatives and Senators, or for state offices.  If the Republicans do force that door open, Democrats could flood through it.  Every down ballot race could be challenged and the result labeled "illegitimate."  Which, again, is why the courts will not decide this election, especially if the challenge is in several states at once, not just in one state over a slow recount of one race.  But if the GOP wants to play that game, they'll find out once and for all why Everything Trump Touches Dies.  They will do to the country what they did to California:  turn it against them for a generation or longer.