Trump is in a panic and a fury this morning. He's clearly hoping the Supreme Court will save him. But this is very unlikely to happen. I gamed out various scenarios with help from experts. Here's why this scheme is also likely to blow up in Trump's face:https://t.co/Aa3WHAbyY2
— Greg Sargent (@ThePlumLineGS) October 27, 2020
In the Wisconsin decision, the eight-justice court ruled that ballots that arrive after Election Day, but were mailed before, will not be accepted. The ruling from the five conservatives is stirring angst because it suggests more rulings that could tip the election to Trump.
But this will only happen if a series of unlikely scenarios all line up.
...
One big fear is this could mean the high court will end up overruling a recent Pennsylvania state supreme court decision allowing for the acceptance of mail ballots that arrive up to three days after Election Day.
In the Wisconsin decision, the court invalidated a lower court ruling allowing for the acceptance of ballots after Election Day on the grounds that the lower ruling overrode GOP state legislators in determining how to run elections, including during a pandemic.
This might suggest the court will also overturn the Pennsylvania decision. In that case, the state supreme court also overrode the GOP state legislature, which opposed the extension. And when the eight-justice high court previously heard this case, it deadlocked 4-4, with all the conservatives being willing to restore the state legislature’s will.
Hold on to that 4-4 split; it's rather important.
So, could the Supremes screw Pennsylvania over again?
....To do so, they’d have to contradict a principle that Justice Brett M. Kavanaugh articulated in his Wisconsin opinion. He argued that Wisconsin couldn’t extend the period for accepting ballots because this constituted “changing state election rules too close to an election.”
Kavanaugh described this as an affront to the democratic process, because it constituted a change when “an election is imminent.”
But if the Supreme Court now nixes the extended deadline in Pennsylvania, this would also constitute changing election rules when "an election is imminent.”
That’s because untold numbers of Pennsylvanians have shaped their voting schedule around the expectation that ballots arriving after Election Day might be accepted — because the high court previously deadlocked, which means the court itself allowed this schedule to proceed.
Told you that 4-4 split could prove important.
....[T]he conservative justices cannot get around the fact that a change now would be undoing a state of affairs that the court itself created for voters, by deadlocking.
“The court would be doing this literally on the eve of the election,” [UT-Austin law professor Stephen] Vladeck said, adding that this would be “past the point where at least some Pennsylvania voters would be able to cast a lawful ballot.”
There's another problem: how many people have already voted by mail.
[E]normous numbers [or people] are voting by mail earlier than expected — more than 1.7 million people in Pennsylvania alone — meaning far fewer will vote by mail toward the end. That, combined with Joe Biden’s more than five-point lead there, makes the window for this to swing the outcome very small.
One other problem: in order to "Bush v. Gore" this election, it has to come down to the vote count in only one state.
And for this to work, it would all have to come down to Pennsylvania, when in fact Biden is likely to win other states that mean Pennsylvania alone isn’t decisive.
“You’d have to have enough late-arriving ballots to make a difference in a state and have that state make the difference in the election,” Vladeck said.
Kavanaugh also said, in his dissent, that ballots arriving after Election Day might create a "suspicion of impropriety." But you can't get that into court unless the results are known.
Still another possibility might be that the high court finds a way to halt the counting of mail ballots even if they arrived on or before Election Day. Kavanaugh’s ruling also vaguely declared that if the results aren’t announced on or right after Election Day, it might create “suspicions of impropriety.”
That declaration is absurd, since the whole point of allowing for weeks to pass before certification is to avoid such suspicions. And as election expert Rick Hasen notes, there isn’t any result to cast doubt upon until all votes are counted.
“The reality is that we never know an official winner on election night,” [election expert Rick] Hasen said.
Beyond this, Vladeck notes that such a ruling is unlikely: It would require five conservatives to break with their hallowed principle of state legislative control over voting rules, since those legislatures themselves created vote-by-mail systems.
In other words, to uphold Kavanaugh's "radical" reading of Article II and the 12th Amendment on the grounds late ballots can't be counted, you have to shred Kavanaugh's "radical" reading of Article II and the 12th Amendment. Because late ballots can only be counted in accordance with applicable state law.
So how is Kavanaugh's opinion the end of the republic as we know it? (I don't agree with him, but he's put himself and the conservative majority in a box on this issue. It's seems to be a hallmark of Trumpism.)
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