Tom thinks it is high time for SCOTUS to crush, loudly and clearly, the election challenge madness perpetrated by Trump and the GOP.
As Election Day approached in early November, I found myself conflicted in a very specific way. Not terribly conflicted, just a little bit. I would say 99% of my brain wanted Joe Biden to win in a landslide. To capture every single swing state, winning convincingly in the Rust Belt, surprisingly in the South and sweeping the West. To rack up 413 electoral votes and garner a popular vote margin of 15 million vote or more. And I wanted it to be over by midnight eastern time on election night, a drubbing so convincing that there could be nothing for Trump to contest, to have His Orangeness simply stunned into silence by the magnitude of his repudiation.
But that nagging little 1% of my brain was thinking something else – maybe it should be a close Biden win. A risky thought, yes – but maybe the best thing for our country would be to put us through the ultimate test of our institutions: facing down the promised Trump fraud challenge. Sure, if the American people spoke convincingly against Trump, that would be quite a message. But our apparatus for dealing with the threat of a demagogue would have gone untested. And therefore, we would be just as vulnerable when the next Trump comes around – perhaps a savvier version, just as charismatic and psychotic, but demonically clever as well. All the cracks and fissures that might have been revealed in such a challenge – and fixed -- might have remained unrepaired with a landslide. Perhaps what our democracy needed more than a simple repudiation of Trump was a true test of the nuts and bolts processes that are supposed to protect our democracy.
What the election actually provided was something in the middle. Biden won reasonably convincingly, with healthy margins of 7 million popular votes and 4.5 percentage points, and a 306 to 232 victory where it counts, in the Electoral Vote. And maybe that was the best outcome. The outcome was convincing enough, by any historical standard, that a challenge would look odd. This election was not as close as those of 1960 or 2000. It was not even as close as 2016, when Hillary Clinton actually won the popular vote and lost by exceedingly thin margins in multiple swing states, but conceded immediately nonetheless. Without a popular vote win, Trump could not invoke the “will of the people” argument, and with a relatively lopsided Electoral Vote defeat, he could not focus his energies on one close state, like Bush/Gore.
What gave Trump some juice for his fraud challenge was the nature of the voting pattern. Due to the pandemic, there was an incredible increase in pre-election day voting, and in mail-in voting. Because Trump had dissed the mail-in option so thoroughly, and downplayed the impact of the virus, Democrats were far more likely to vote in advance and by mail, both to avoid crowds at the ballot box, while the GOP was more likely to go the traditional route and vote in-person on Election Day. Since the crucial swing states did not allow the counting of mail-in ballots as they arrived, this gave rise to the “red mirage.” Trump held reasonably sizable leads on election night in Georgia, Michigan, Pennsylvania and Wisconsin, only to see them disappear in the ensuing days as the mail-in votes were counted. This pattern gave the Biden win the illusion of a “comeback,” even though the mail-in ballots, though counted last, actually were cast first. For those who believed Trump, it gave prima facie evidence of a “stolen” election…it appeared that just enough votes materialized – out of nowhere! – to give Biden incredibly close wins.
You know what happened next. Trump refused to concede even after all the major networks and media outlets, including FOX, called the election for Biden after four long days of watching the returns trickle in, slowly turning the tide blue. Trump’s utterly pathetic legal team mounted ludicrous challenges, over 50 of them, in courts in multiple states, and came up empty, as judge after judge, appointed by both Democrats and Republicans (including Trump), savaged their arguments, one after another. The recounts only affirmed the margin of the Biden wins, and the certification process held strong, ultimately resulting in all 50 states (and DC) affirming the people’s choices. Even Bill Barr announced that the Justice Department could find no evidence of fraud on a scale to change the outcome. Our institutions seemed to pass all of the tests, not without some drama, some hiccups and, yes, shockingly, some death threats to elected officials, particularly the Republican ones who stood down the president’s threats, and others, when their time came in the spotlight. There was some bending --- some cracks and fissures -- but no breaking.
But with the challenge from the 18 states (and now joined by 106 U.S> GOP representatives in an amicus brief) comes the chance for the coup de grace. Yes, the Supreme Court has spoken once already, albeit only in a single sentence: "The application for injunctive relief presented to Justice [Samuel] Alito and by him referred to the Court is denied.” This was to a petition by U.S. GOP Representative Mike Kelly of Pennsylvania, seeking to overturn the law that enabled mail-in voting in that state. This was an incredibly brazen attempt to disenfranchise all 2.5 million mail-in voters in the state, most of whom voted for Biden. Importantly, but perhaps lost in the brevity of the statement, was the fact that there was no dissent, meaning that the conservative wing of the Supreme Court, including the three Trump appointees, agreed with the ruling.
But with the Texas lawsuit comes another opportunity. The Texas Attorney General filed the suit, an even more brazen one than in Pennsylvania, seeking to overturn the elections in the Biden-won states of Georgia, Michigan, Pennsylvania and Wisconsin on the grounds that they were “unconstitutional” elections, thus attempting to disenfranchise tens of millions of American voters, asking instead that GOP legislatures be empowered to select the state’s electors. The lawsuit was soon joined by 16 other red states.
My hope is that the Supreme Court will actually agree to hear the Texas case, which has been joined now by 16 other red state AG’s. The Court might not even bother. Even GOP Senator John Cornyn, a former judge and a Trumpster who is nobody’s idea of a “moderate,” was scratching his head: “I read just the summary of it, and I frankly struggle to understand the legal theory of it. Number one, why would a state, even such a great state as Texas, have a say so on how other states administer their elections? We have a diffused and dispersed system and even though we might not like it, they may think it's unfair, those are decided at the state and local level and not at the national level. So it's an interesting theory, but I'm not convinced.”
But would it not be a welcome and fitting conclusion of the legal shenanigans if the Supreme Court issued a ringing 9-0 ruling, slamming the door on Trump’s efforts? To allow John Roberts to write a soaring, Sorkin-inspired opinion in defense of the integrity of our electoral system, laying waste to the Texas arguments, and perhaps by implication, if not overtly, all the specious fraud claims that Trump has made? Such a ruling would echo the famous 8-0 ruling against Richard Nixon in the 1974 Watergate tapes case – a ruling also issued by a majority Republican-appointed court, including four Nixon selections (though one, Justice Rehnquist, recused himself from the case as he had worked in the Nixon Administration before joining the Court) – a case that resolved a constitutional crisis and affirmed our doctrine of separation of powers. A moment many consider our finest in modest jurisprudence (with the Bush/Gore ruling, ironically, being our worst).
Would that not be a beautiful thing, a fitting coda to this sordid assault on democracy? Watching John Roberts read his opinion aloud while Justices on both sides, including Amy Coney Barrett, whom Trump openly wanted on the court by Election Day for the specific purpose of backing him, nodding their heads?
The ruling may not be this. But a 9-0 verdict of some kind is surely coming. And no matter how short the opinion may be, it will still be the nail in the coffin of this grotesque and unprecedented challenge to our system of government. May the sound of that pounded nail be loud and clear enough for all to hear.
And then we can get to work on fixing those cracks and fissures that have been laid bare, to ensure nothing remotely resembling this farce can ever happen again.