Matt Slocum/AP Photo
Former Vice President Joe Biden speaks during a roundtable on economic reopening with community members, June 11, 2020, in Philadelphia.
Let’s start with two pieces of good news. Biden is now way ahead nationally in the polls, and leading in nearly all of the key swing states. Democrats are also on track to take back the Senate.
In addition, the impact of the virus deterring voter registration shows signs of reversal. Following big gains in 2019, by April new voter registration numbers had fallen drastically, according to this report from the Center for Election Innovation and Research.
But the wave of protests and outrage against Trump following the police murder of George Floyd restored the upward registration trajectory. CNN reported that groups such as Voto Latino, Rock the Vote, Color of Change, and several others recorded a huge spike in registrations the first two weeks in June. This was confirmed by CBS and by other media. According to Rock the Vote, 70 percent of their newly registered voters were under 30, and 39 percent were people of color.
And … here’s the bad news. The Georgia election fiasco last Tuesday gave us a preview of what we can expect in November: technical screwups that just happen to hit hardest in areas that are heavily black and Latino or otherwise lean Democratic; failures to provide mail-in ballots; selective closure of polling places; insufficient numbers of poll workers. Georgia was also ground zero in 2016 of excessive purges of the voter rolls.
This year, because of the pandemic, record numbers of mail-in ballots will be issued. There are opportunities for mischief both in getting these ballots out to voters, and in making sure that all are counted.
In the past, mail-in ballots have tended to be more heavily Democratic. That means that the Republican may be ahead on election night, but when all the ballots are counted, the Democrat wins.
This actually happened in 2018 in Arizona. On election night, Republican Martha McSally was leading by about 1 percent, but when all the mail-in and early ballots were counted, Democrat Kyrsten Sinema had won by about 51,000 votes, or four-tenths of 1 percent. Some Republicans tried to claim fraud, but Gov. Doug Ducey, though a Republican, played it straight and declared the election fair.
This year, however, election results will be challenged in multiple states and in multiple ways. As I wrote in this piece June 2, there will be several states where the winner is truly not known on election night, due to the proliferation of mail-in ballots, which take longer to count even with scrupulously honest counters. There will also be challenges by citizens, mainly Democrats, who did not get to vote at all, due to bogus purges, balky machines, selective closures of polling places, and long lines.
All of which is ready-made for Republicans to challenge the results in multiple states, especially if Biden is the apparent winner. I’ve done some more digging since I wrote that earlier piece, and here’s the key inflection point:
The Constitution provides that each state may decide its own manner of certifying the winning slate of electors. With the exception of Maine and Nebraska, which award electors by congressional district, the other states award all their electors based on which candidate won the state’s popular vote. Normally, the governor is responsible for certifying who won.
But what if the winner is contested? In states with a Democratic governor and a Republican legislature, most notably the key swing states of Michigan, North Carolina, Pennsylvania, and Wisconsin, the executive could certify one winner, and the legislature could try to certify his opponent.
This is constitutionally dubious, since state law generally awards that role to the executive branch or to an electoral commission. The legislature would have to change the rules after the fact.
If a Republican-dominated legislature tried that stunt, Democrats would likely sue, first in state court. The controversy, sooner or later, would make its way to the U.S. Supreme Court.
I titled my previous article “Kingmaker: How John Roberts Will Pick the Next President.” Since then, I’ve done some more interviews.
On the one hand, Roberts predates Trump; he is not beholden to Trump for his seat on the Court (in contrast to Justices Gorsuch and Kavanaugh), and he is more of an establishment Republican than a movement Republican.
What if the winner is contested? In states with a Democratic governor and a Republican legislature, the executive could certify one winner, and the legislature could try to certify his opponent.
On the other hand, though he occasionally breaks ranks with his fellow Republican justices to vote with the four liberals—Roberts and Gorsuch voted Monday with the liberals to hold that the 1964 Civil Rights Act’s prohibition of discrimination on the basis of sex protected LGBTQ people—his record on voting rights cases is truly awful. Roberts was the author and the key vote in the majority ruling in the 2013 case Shelby County v. Holder, gutting the Voting Rights Act.
If several states present the Supreme Court with competing slates of electors, in an election that Biden has clearly won, Roberts might well conclude that the integrity of the Court and the future of American democracy, as well as his own place in history, require the Court to overturn the attempted theft.
But he might also conclude that the integrity of the Court would be better served by dumping the whole mess in the lap of Congress. The new Congress is likely to be Democratic unless Republicans try to steal those elections as well, in which case the mess deepens; and we have a scenario like that of 1877, where we don’t know the winner right up until the eve of the inauguration, and perhaps not even then.
I’d like to believe Roberts would prefer to avoid that outcome. But this hunch is a pretty slender reed on which to base the future of our democracy.
The best form of insurance is for Biden to win such an overwhelming victory that Republicans would not try to steal the election, and if they did the Supreme Court would not let them.
