So, there’s some good news from yesterday: American democracy is still alive. It may be hobbled and gasping for breath, but it’s still alive.
While most Americans slept and millions of legitimate ballots awaited counting, President Trump made the predictable, feverish announcement that he won the election. This cynical attempt to thwart democracy will fail—just like the litany of others. That’s the amazing part.
Think about it.
For weeks, Trump and his attorney general, Bill Barr, savaged mail-in balloting as fraudulent. People still voted by mail and those ballots will likely decide the election. Trump’s heads-up that he would be attacking the constitutional voting rights of citizens who used that option to exercise the franchise during an epic pandemic only inadvertently served to educate the voting populace. After 550,000 mail-in ballots were tossed during the primaries, people learned to check the paperwork impeccably. Even now, some will fall through the cracks, but the process stood.
Then Trump took a swipe at the U.S. Postal Service, with his donor-loyalist Louis DeJoy at the helm. DeJoy concocted a transparent plan to outmaneuver voting by mail in a pandemic, cutting back worker hours and removing sorting machines—all under the pretense that it was business as usual. The U.S. Congress held hearings, there was public outrage, and DeJoy reverted to the shadows. When a federal judge learned that 300,000 pieces of mail had not been accounted for, he ordered the USPS to find them. Under the strain of election day, the USPS declined to comply, prompting the judge to direct government lawyers to be ready to explain themselves to him in court today.
Next came a stream of lawsuits across the country in which the Trump campaign and the Republican party invoked the judicial system in a bald effort to making voting harder during a pandemic—challenging drive-through voting sites, ballot drop-off boxes, easing of notarization and signature requirements, limits on who can be poll watchers, the counting of timely postmarked ballots received after November 3, and on and on.
The wrinkle with this maneuver is that, even under the voter-unfriendly legal doctrines concocted by the Supreme Court to govern challenges to voter access laws, courts tend to require evidence. And there just wasn’t evidence to be found. Election fraud is rare. Without empirical evidence—remember when Trump claimed Wisconsin ballots were “being dumped in rivers”?—many of those lawsuits failed to stop the election.
Let’s not forget, too, the HEROES Act, which was passed by the House in May and went without action in the Senate ever since—another casualty of Mitch McConnell’s control of the Senate. Not only did that legislation have money to bail out the U.S. Postal Service, but it would have funded the states’ efforts to hold an election during a pandemic. Yesterday they managed to pull it off anyway. This is nothing short of amazing—thousands of regular folks worked tirelessly on the front lines of democracy, political bullets whizzing past their heads. For the most part, the feared problems of long lines, machinery breakdowns, last-minute closings of polling sites, and inadequate volunteer staff didn’t materialize.
So too, Trump’s violence-stoking rhetoric to his most fervent supporters didn’t produce violence at the polls. It didn’t keep people from voting. With the exception of the miles-long “Trump Train” caravans trolling America’s streets, the whole charade of bringing out his supporters to strong-arm his way into four more years proved to be just that: a charade.
Which brings us to the U.S. Supreme Court and the fire-drill appointment of Amy Coney Barrett to fill the late Ruth Bader Ginsburg’s seat. Trump has repeatedly promised that the election would be decided by the court—much like the 2000 race between Al Gore and George W. Bush, where a 5-4 conservative majority halted a recount in Florida under Florida law by Florida officials, handing the presidency to Bush by 537 votes. Again last night, during his unwarranted declaration of victory, Trump said “we’ll be going to the U.S. Supreme Court.” But for that to happen, many stars must align for him.
For starters, there must be an actual dispute under state or federal law regarding the counting of ballots in a state that could decide the election. Which means that the vote tally needs to be slim in a potentially decisive state like North Carolina, Michigan, Wisconsin, or Pennsylvania. That lawsuit must be brought by a plaintiff with “standing”—someone who can show that the allegedly unlawful practice actually caused tangible harm that justifies the courts’ involvement. This has been a tough hurdle for the Trump campaign to overcome in some of the pre-election litigation.
Next, of course, assuming that the dispute can be expedited up the litigation chain for resolution before December 8—the statutory deadline for state legislatures to meet and enact an alternative law for casting electoral votes if the tally is tied up—the Trump camp must convince five justices to swing the election his way. In the meantime, Justice Barrett will be under pressure—rightfully—to recuse herself. But even a conservative-leaning court would be hard-pressed to disturb a state’s prerogative to decide its own election. Textualists on the court have already emphasized that the Constitution lodges the power to decide elections in the state legislatures, and many states allow ballots to be counted after election day so long as they are postmarked on or before. In Bush v. Gore, the majority focused in part on the perceived unfairness of only recounting some ballots and not others—it hardly laid out the precedent which Trump seems to see in it, that courts decide elections. To the contrary, Justice Scalia took pains to state in the majority opinion that it was a ticket for that train only: “our consideration is limited to the present circumstances.”
Trump showed his hand early—that he was running against the electoral process itself, not against any particular candidate—and so far that gambit has failed.