Kevin Fowler/AP Images for AVAAZ
Local civic groups projected ‘Count Every Vote’ on a giant screen in front of the Michigan State Capitol, November 5, 2020, in Lansing, Michigan.
Harvard Law professor Michael Klarman is a legal historian and scholar of constitutional law. He clerked for Ruth Bader Ginsburg when she was a judge on the D.C. Circuit Court of Appeals. Klarman’s book From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality received the 2005 Bancroft Prize in History.
Will the new 6-3 Republican Supreme Court intervene to help Donald Trump steal what now looks to be a convincing Biden win? And will Democrats be able to put America back on course to reclaim its democracy? Harvard Law professor Michael Klarman provides reassurance on both counts.
Robert Kuttner: Do you think the Supreme Court has enough of a regard for its own credibility and enough respect for basic democratic norms that even this Court will be hesitant to overturn the results of the 2020 election, assuming Biden does win Michigan, Pennsylvania, and Wisconsin? When will we have some sense of whether the Court is unwilling to do Trump’s political bidding by overturning the election results?
Michael Klarman: The Court isn’t going to overturn the election result. The election isn’t close enough for any of Trump’s litigation to affect the result. What the president wants is to stop the counting of votes in Pennsylvania (while demanding that vote counting continues in Arizona!). But there is no legal controversy about the votes in Pennsylvania. They were received before election night. There is no question they should count. The Pennsylvania legislature should have changed the law to allow them to be counted before Election Day, as many other states permit, but Republicans in the legislature would not allow this, perhaps because they wanted to support Trump’s fraudulent claim that votes counted after election night are fraudulent.
Had the final result been closer, then the litigation would have involved issues such as whether mail-in ballots postmarked before election night but not actually received until after that day can be counted if the legislature did not authorize this, but a state court or state electoral commission did. Several of the conservative justices have implied or stated that they would buy such a legal challenge on the ground that the Constitution authorizes only state legislatures to make rules for presidential elections. It’s a pretty weak legal argument, but that hasn’t stopped some of the Republican justices from indicating they would have accepted it.
But, to repeat, the election result in Wisconsin, Michigan, and Pennsylvania just isn’t close enough for the Court to find any credible basis for interfering.
RK: You have argued that the Democrats need to “re-entrench” democracy. If the Biden administration can get through its first two years with its credibility intact, the number of vulnerable Republican senators up for re-election in 2022 actually looks pretty good for the Democrats. As many as five Republican seats could flip, and no Democratic seats seem in jeopardy. If the Democrats were to take back control of the Senate in 2022, what would democratic re-entrenchment measures look like?
MK: Democratic legislatures should make voter registration and voting easier. Registration can be made automatic for all citizens when they turn 18 and for older citizens when they interact with government agencies. Same-day voter registration significantly enhances turnout without increasing fraud, contrary to the baseless charges of Republicans. Felon disfranchisement, which has enormous racially disparate effects, should be ended. Election Day should be made a holiday. Gubernatorial elections should take place at the same time as presidential elections, when voter turnout is much higher and is more demographically representative.
The number of early-voting days, polling places, and voting machines should be increased, so people need not wait in long lines to vote. Absentee ballots should be available without excuse. Onerous identification requirements should be eliminated because they reduce turnout on the pretext of reducing fraud. Partisan gerrymandering should be ended. Public financing of elections would help reduce the influence of money in politics until the Court’s atrocious campaign finance decisions are overturned.
Such measures would go a decent way toward making the American political system more representative of the American people. However, there is a significant chance that the most conservative Supreme Court in a century would invalidate all or many of these measures, at least insofar as they purport to regulate state elections, on federalism grounds.
RK: Turning back to the courts, are there major areas where Congress could revise right-wing Court decisions by clarifying legislative intent on issues that don’t really reach constitutional questions?
MK: The Court’s ruling in the voter purge case in 2018 was based on an (indefensible) reading of the 1993 “motor voter” law to permit states to purge rolls simply because voters had not voted in recent elections. That decision could be overturned by statute, though at least one or two justices implied that such a statute would be unconstitutional (for invading state prerogatives in how to run their elections).
Similarly, Congress could re-enact the Voting Rights Act with a different “geographic formula” in response to the Court’s 2013 ruling in Shelby County holding the formula from the 1965 Voting Rights Act unconstitutional. But the conservative justices implied there that they would look skeptically on any preclearance requirement, as an inversion of the usual principle that states can pass laws without first seeking permission from the federal government. So I wouldn’t be optimistic about the Court’s upholding such a law.
Most of the rest of the Court’s ghastly voting rights rulings are based on the Constitution, either finding a state practice permissible (strict voter identification laws) or invalidating a state or federal regulation (campaign finance restrictions). The latter certainly cannot be overturned short of a constitutional amendment. Congress could try to overturn the former by statute, but there is a good chance the Court would find such a statute unconstitutional on the ground that Congress has no power under the Reconstruction amendments to forbid state activity, which those amendments do not themselves prohibit.
