Leah Millis/Associated Press
We may once again see the Supreme Court play a deciding role in a presidential election.
What seemed paranoid only yesterday is now conventional wisdom. Donald Trump will claim the election was rigged and he will resist leaving office. But it’s not at all clear that he will prevail.
There are some truly far-fetched scenarios, such as Trump trying to cancel the election or using emergency powers in a Trumped-up crisis to postpone it. (The Constitution could not be clearer. He doesn’t get to do that.)
What is increasingly clear, however, is that America won’t know the winner on election night. That’s because in several states there will be massive use of absentee ballots of various kinds, as well as record numbers of votes by mail. These will take longer than live votes to count.
There will also be court challenges in many states and counties. So it’s very likely that the Election Day results will not be final.
Here is a tour of various Republican strategies for suppressing the vote, rigging the count, and disputing the votes. This will come down to some nine or ten states where the vote will be close. In a heavily blue state, which Biden wins by, say, eight points or more, such strategies will be pointless. In these states, the election administrators also tend to be Democrats.
The Usual Mischief. In states where Republicans control the election machinery, expect the litany we’ve come to know so well—reduced hours at polling places in areas likely to vote for Democrats, polling places closed altogether, purges of voter rolls, machine “malfunctions,” and hacks.
These and kindred abuses were already serious in 2016, when the Department of Justice was in Democratic hands. Most election administration is state or local. While there has been some real progress in improving the technology of voting, that progress doesn’t address pure mischief such as purges and reduced access.
Poll-Watching and Intimidation. The Republican National Committee has announced plans to field some 50,000 “ballot security” poll watchers, whose prime function will be to threaten and intimidate voters, warning them of felony fraud charges and the like.
Under a 2018 Supreme Court ruling, tactics that used to be prohibited as pure harassment are now permissible. The ruling allows such efforts to proceed without court approval. For 35 years, federal courts had prohibited a variety of tactics.
The Russians Are Coming (Back). Russian hacking and use of trolls, bots, and fake websites, which was so influential in 2016, was relatively quiet in the 2018 midterms. But Trump has been an even better friend of Vladimir Putin than Putin dared hope. And the stakes in 2020 are even higher. With Trump in charge, though the professionals in the intelligence community are on the case, don’t expect White House cooperation in federal government efforts to foil Russian interference.
The Complication of the Virus. Due to the social distancing necessitated by the coronavirus and people’s aversion to crowds, a record number of states are offering absentee ballots. Some are sending voters vote-by-mail applications. Others are sending actual ballots. This gives the Republicans a pretext for claiming widespread fraud. At best, it complicates the process.
The State-by-State. Election administration in key swing states ranges from horrific to not too bad. Last time, Georgia was the absolute worst, with Secretary of State Brian Kemp carrying out voter-suppression schemes while he was candidate for governor. Florida was a close second, though a federal district judge recently overturned the state legislature’s clumsy effort to annul the voter-approved mandate for re-enfranchisement of former felons by making them pay back fines, as a backdoor poll tax. Florida has appealed. Wisconsin was also one of the worst, and still is (though in April voters braved both the virus and craven manipulation of the recent election to vote out a far-right supreme court justice).
But other swing states are now more resistant to voter-suppression schemes than in the recent past. North Carolina’s Republican legislature lost its veto-proof supermajority against its popular Democratic governor; and gerrymandering schemes have been thrown out by the state’s progressive supreme court. Pennsylvania and Michigan now have Democratic governors. Ohio’s Republican governor, Mike DeWine, is no friend of Trump, and the state has less voter suppression than in recent past elections. Arizona, with a Republican governor, has a Democratic secretary of state; and in Nevada, both offices are held by Democrats.
The Democrats and other pro-democracy groups are well prepared for all these tactics. The Biden campaign, the Democratic National Committee, and many state parties have fielded teams of voting rights activists and lawyers to fight these and other tactics. A broad civil rights coalition is mobilizing to protect the vote.
Even so, in all likelihood this contest will go into extra innings. On election night, the networks will call clearly red states and blue states, but there will be a sizable third category where either large numbers of votes are not yet in, or the results are being litigated.
John Roberts surely knows that if Trump steals the election and takes office for a second term with the complicity of the Supreme Court, that is the end of American democracy.
What then? There are three scenarios to worry about. One is Bush v. Gore 2000; the second is Tilden v. Hayes 1876. And the third is neither candidate winning a majority of the Electoral College, and the election being decided by the House. (That sounds promising, except that the Constitution provides for one delegation, one vote—which means that Trump wins.)
In 2000, it all came down to Florida. The election was flawed in many respects, most notably in Palm Beach County. The obvious remedy was a statewide recount. But the Supreme Court, which had a 5-4 Republican majority even 30 years ago, overruled the Florida state supreme court, aborted the recount, and called the election for Bush.
In 1876, there were competing slates of electors claiming to be the legitimate winners in Florida, Louisiana, and South Carolina, the last three Southern states with Reconstructionist Republican governments. The election was inconclusive because of extensive suppression of votes from freed slaves. A reform Democrat, Samuel Tilden, won the popular vote. In the end, Congress set up a commission to determine the winner. On March 2, 1877, in a deal in which Hayes agreed to end federally enforced Reconstruction, the commission awarded Hayes the disputed electors and the election, just days before the inauguration.
On Election Day 2020, there will very likely be several Republican suits challenging the results. They will end up in federal court, and the Supreme Court will be under pressure to expedite review. Each one will have different facts and theories of the case, so it will not be possible for the Supreme Court to consolidate them.
I’m guessing that Chief Justice John Roberts is unlikely to go along with a straight-line party vote to help Trump steal the election. He and Trump have clashed in the past, and he has occasionally been willing to vote with the Court’s liberals, as in upholding the constitutionality of the Affordable Care Act, and most recently just last week when he voted with the liberals upholding the power of the governor of California to restrict church gatherings on public-health grounds.
Roberts will be inclined to give Republicans the benefit of the doubt in genuinely close calls, but he surely knows as well as anybody that if Trump steals the election and takes office for a second term with the complicity of the Supreme Court, that is the end of American democracy. He may not want that to be his legacy.
But let’s not take any chances. If we want to put some steel in Roberts’s spine, the best way is to fight for as fair an election as possible—and then win it overwhelmingly. The bigger the win, the harder it is to steal.
