Matt Rourke/AP Photo
Chief Justice John Roberts plainly doesn’t like Trump and has been willing to vote against the administration position in several key cases.
It’s now increasingly clear that we will not know the winner of the election on election night; and that in addition to all manner of voter suppression maneuvers, Trump and the Republicans will challenge the results in swing states that Biden appears to have won.
In various war game exercises, nicely summarized in this authoritative New Yorker piece by Eric Lach, a number of scenarios have been played out, but they basically boil down to one: The Republicans aim for a deadlocked endgame, in which competing slates of electors are sent forward by governors or legislators.
There are at least four swing states where this is possible. In Michigan, North Carolina, Pennsylvania, and Wisconsin, Democrats have the governor but Republicans control the legislature. The Constitution gives the states the authority to pick winning electors, but doesn’t specify how.
In this scenario, a divided Congress is unable to decide between the competing slates, and thus no candidate has a majority of electors. At that point, the 12th Amendment to the Constitution applies. It provides that if there is no electoral majority, the House of Representatives shall choose the next president, with each state delegation having one vote. This has happened twice, after the elections of 1800 and 1824.
Though the Democrats have a majority of House seats, the Republicans dominate the small states and have a majority of state delegations. Thus, Trump wins.
Such a scenario was narrowly avoided in 1877, when different government bodies in three Southern states, Florida, Louisiana, and South Carolina, where Black voting was repressed, sent forward two competing slates of electors. The deadlock continued almost until Inauguration Day, at which point a deal was struck whereby the Republican, Rutherford B. Hayes, was allowed to steal the election from the reform Democrat Samuel Tilden, on condition that Hayes would end Reconstruction.
If competing slates of electors are still causing the process to deadlock next January, no such deal is likely, and the election goes to the House. So is there anything to prevent Trump from carrying out this scheme?
Enter the Supreme Court. I wrote about Chief Justice John Roberts’s possible involvement last June, but recent disclosures of Republican strategy make the dynamics of the endgame and the Court’s inevitable role even clearer.
In the weeks after the election, there are likely to be proliferating lawsuits from different players in different states. The Supreme Court, mindful of two key dates—December 8, when all court challenges must be resolved, and December 14, when the electors meet—will very likely expedite review of these cases. (In the disputed election of 2000, the high court stopped the clock on the Florida recount on December 12 and called the state for George W. Bush because of these looming deadlines.)
So it is likely that the Court will resolve the question of who won which state well before the deadlocked Electoral College scenario kicks in. Having done so in 2000, the Court can do it again. We are probably talking about fewer than seven states, each with different particulars. The rest will be either clearly for Biden or for Trump.
At this point, gentle reader, it makes me a bit queasy to bet the future of the Republic on one John Roberts, but stay with me.
If the election is very close, we are doomed. Trump steals it. But if Biden appears to have won by a healthy margin, let’s say four points or more in the key swing states, then it is highly unlikely that even the Roberts Court will collude in a flagrant electoral theft.
For starters, Roberts plainly doesn’t like Trump or his dictatorial maneuvers. He has been willing to vote against the administration position in several key cases.
Roberts also has the integrity of the Court as an institution to consider. It was easier for the Court to take a partisan dive in Bush v. Gore because the Florida election was genuinely close, muddled by mishaps, and because Gore had effectively conceded defeat.
It is likely that the Court will resolve the question of who won which state well before the deadlocked Electoral College scenario kicks in.
So here is my wager. If Biden wins decisively based on the exit polls, and if the details of post-election litigation reveal all manner of Republican chicanery, the Supreme Court is not likely to conspire in a theft. For it isn’t just the theft of an election but the theft of what’s left of the American democracy. Roberts has to know that.
Indeed, if those circumstances obtain—a clear Biden win and clear Republican fraud—I think it could well be a series of 7-2 votes, with Roberts bringing along Trump’s two appointees, and only Alito and Thomas voting as pure partisan hacks.
The Republicans can fulminate and argue that the Constitution provides that only Congress shall recognize electors. But the Supreme Court is the ultimate arbiter of what the Constitution means. And the Court already has the precedent of Bush v. Gore, establishing its right to call a winner, as well as its institutional need to insist on its prerogatives.
We had just better hope that Biden’s win is decisive.
