The Supreme Court opening created by Ruth Bader Ginsburg’s death has put the potential legal issues surrounding November’s election into what newspaper writers like to call “sharp relief.” With Ginsburg gone, there will be at most four justices—Elena Kagan, Sonia Sotomayor, Stephen Breyer, and possibly the legitimacy-minded Chief Justice John Roberts—who can be counted on to reject whatever openly partisan attempts the Trump campaign might make to invalidate Democratic ballots in swing states.* (These challenges would be made in lower courts but get kicked quickly up to the Supremes.)
Such legal fights are apparently at the core of the president’s reelection strategy. He trails Joe Biden by a wide margin in national polling and by narrower but steady margins in most of the key battleground states. If Trump is going to re-create his 2016 map, it will mean putting together a string of comeback victories that turn on tiny differences in the statewide vote counts.
It is those vote counts that his reelection campaign is already litigating in lower courts—and that he, in recent days, has started to make ominous noises about needing a Supreme Court justice to help him mess with. In his characteristic way of stating the blunt truth in a manner that would be admirable if not for all of the rest of the things he does, Trump said on Monday, regarding the court opening, that “we should act quickly because we’re gonna have, probably, election things involved here, you know, because of the fake ballots that they’ll be sending out,” by which he meant (real) mail-in ballots. On Tuesday, he said that “with the unsolicited millions of ballots that they’re sending, you’re gonna need nine justices.” On Wednesday, he answered a reporter who asked if he’d commit to a “peaceful transition of power” like so: “Get rid of the ballots and you’ll have a very—we’ll have a very peaceful—there won’t be a transfer, frankly. There’ll be a continuation.” Trump, in his own words, needs a fully loaded Supreme Court that will get rid of the ballots he wants to get rid of.
There is good reason to think he will, at least, have an amenable court. In 2000’s Bush v. Gore, a conservative-leaning Supreme Court halted vote counting in Florida in order to install a Republican president. Recently, an even more conservative court has allowed the Trump administration to ignore congressional subpoenas, divert congressional appropriations to pay for border wall construction that Congress refused to fund, and implement a foreign-visitor ban that was explicitly motivated by religious discrimination. One does not have great confidence that this group, if Ginsburg is replaced with one more right-wing ideologue, will stand up for small-D democratic principles if those principles could lead directly to the inauguration of a big-D Democratic president. Even if Republicans don’t succeed in installing a replacement by November, a court split 4–4 wouldn’t have the votes to overturn dubious pro-Trump lower-court rulings by the many partisan judges who’ve been jammed into office since 2016 by Trump and Mitch McConnell.
The question, then is: How much damage could an all but openly partisan Supreme Court, particularly in tandem with partisan supreme courts at the state level and partisan appeals judges, do? It’s impossible to give a single definitive answer, because that would require knowing exactly what is in Trump’s brain when he makes these comments. And no one, including Trump himself, ever knows exactly what he means by anything. But we can look at his remarks in the context of what his campaign has done, then put that in the context of what we know about what might be happening on the ground in November.
One possibility is that, in stating that he’ll need a friendly court for “election things,” Trump is referring to the efforts his campaign is already making to limit the availability of mail-in ballots and to circumscribe the number of them that will count. In Nevada, New Jersey, and Montana, the campaign has sued (so far unsuccessfully) to halt plans to send ballots to every registered voter. In Iowa, Pennsylvania, Wisconsin, and elsewhere, it has filed more targeted litigation over how late such ballots can be accepted, whether drop boxes can be used to collect them, whether they can be counted if their instructions aren’t followed with perfect accuracy, and other questions. The facial claim in these lawsuits is that Republicans are concerned about the potential for large-scale fraud operations—stealing thousands of ballots out of mailboxes, bribing mail carriers, printing and submitting fake ballots—despite such things never having occurred in any of the states that have used mail-in balloting for years. The insultingly obvious political motive to which this façade is crudely glued is that a disproportionate number of Democrats plan to use mail-in ballots because they are concerned about COVID-19 transmission at polling sites and/or lack the personal flexibility to vote in person.
So that’s the first potential meaning of Trump’s comments: He hopes for as many possible rulings that will limit the availability of mail-in ballots and allow them to be disqualified once they’re sent in. As the New Yorker’s Jeffrey Toobin explains, this strategy is the horrible child of Bush v. Gore—the idea being that since a tiny margin in a given state could end up being the fulcrum on which the Electoral College tips to the Republican, like when Florida was decided by 537 votes in 2000, it’s to the GOP’s advantage to be prepared to scrap and claw for as many ballots to be thrown away as possible.
The problem for this approach, at this moment, is that Trump is projected to lose to Joe Biden by wide enough margins that even the largest numbers of potential disqualifications that are being thrown around would not be enough. (“If current projections are correct” is a big if, yes, remember the Needle, blah blah blah, sorry, I’m getting tired of having to talk about the president’s electoral prospects as if he has ancient, eldritch powers that transcend the rules of probability.) One local analyst estimates 100,000 mail-in ballots could be disqualified in Florida, a Republican-run state that already operates under ideal conditions for the Trump campaign. But FiveThirtyEight’s best guess is that, even with recent tightening, Biden should win there by 140,000 votes. And as a handy New York Times page notes, only 47 percent of the mail-in ballots that have been requested in the state were requested by registered Democrats. Even if a significant chunk of the independent voters who requested mail-in ballots are Biden supporters, it would take more than 100,000 disqualifications to shave off enough net Biden votes for Trump to win.
In Pennsylvania, there have also been warnings of a 100,000-ballot disqualification, but the FiveThirtyEight margin translates to roughly a 250,000-vote Biden win. In Wisconsin, the projected Biden margin of victory is 180,000, and while there is a legal dispute over how long mail-in ballots will be counted for, a recent analysis by the Democratic data firm TargetSmart concluded that Republicans and Democrats have been requesting absentee ballots in the state at roughly the same rate, which means disqualifications would not necessarily help Trump. (The analysis found roughly the same even partisan split in Michigan.) So unless the race tightens, the scrap-and-claw effort will not be enough.
Maybe that’s not what he means, then. Trump also said over the weekend that the reason he wants a new justice quickly is so the “the federal court system” can make sure that a winner is made clear on the night of Nov. 3 rather than after an extended period of ballot counting. A new Atlantic article says that, according to Republican sources, the campaign might pressure Republican-held state legislatures in states with high mail-in rates to overturn the results of their states’ elections—i.e., ordering their Electoral College electors to vote for Trump instead of Biden—on the grounds that mail-in ballots are basically all fraudulent and that whatever votes come in by midnight or so on Nov. 3 are the only real votes. This would be a chaotic scenario, but perhaps the Supreme Court would become involved at some point and give its imprimatur.
It makes sense that Trump would like the idea that the TV show called Election Night should be the true authority on who wins the presidency, but he might want to be careful what he wishes for. Again, he runs up against the problem of the polls. Trump is currently projected to lose statewide votes in Michigan, Pennsylvania, and Wisconsin by no less than four points. In Arizona, it’s three points; in Florida and North Carolina the margins are smaller but still currently favor Biden. What, then, will results in those states look like in the hours after polls close? In Michigan/Pennsylvania/Wisconsin, administrators are currently prevented by law from processing mailed-in ballots before Election Day. But in large part because of the panic over the potential for delayed election results, the Democratic governors and election commissioners and local officials in those states are preparing in a variety of ways to count votes as fast as possible even under this year’s unusual circumstances. The chair of the election board in Pennsylvania’s Bucks County says he is aiming for the end of the week of the election; Michigan Secretary of State Jocelyn Benson gave a recent interview in which she described not finishing until the end of the week as the worst-case scenario she is trying to prevent. Arizona, Florida, and North Carolina, meanwhile, allow administrators to begin processing absentee ballots well in advance of Election Day.
So there are states in which Biden has narrow polling leads that should be able to report results promptly. There are places that he has wide leads that might be counting more slowly, but not “we won’t know for a month” slowly; state-by-state results, moreover, are correlated in such a way that a Biden win in Florida almost certainly means one in Pennsylvania. The networks understand this, even Fox, which has a real decision desk, which means its election-night “calls” are produced, like its polls, by experts rather than partisan personalities. Even if New York and California are slow counting mail-in ballots—and their unified Democratic governments don’t do anything to speed things up despite the attention currently being paid to the issue—there are other large states like Georgia, Illinois, New Jersey, Texas, and Virginia that do preprocessing and should be reporting at something like a normal pace.
Unless Tucker Carlson and Sean Hannity seize the means of producing Fox’s “calls,” then—or backstage pressure from the White House convinces network executives to muzzle their actual experts—all the TV people extrapolating the available numbers on election night and the following few days will be describing, if current projections hold, a comfortable Biden win, one that will involve a national popular vote margin of well over five million and can be predicted with confidence as soon as Florida and Arizona are finished reporting. Pennsylvania is the state in which Trump is most likely to end up having the opportunity to make a case for overturning results, given its GOP-held legislature and the information that’s currently available about partisan mail-in-request disparity and vote-counting speed, but for that to be potentially useful for him polls would have to tighten to the point that the state tips the Electoral College.*
The polls may change, and without any state ever having held a presidential election during a pandemic before, it would be irresponsible to predict when we will definitely know anything. But Trump’s vision of using the Supreme Court to preserve what seems on election night like a repeat MAGA win is, according to what we know right now, a long shot. One never wants to rule out any scenario with Trump—like one in which, say, he has soundly lost the national popular vote and Electoral College but tries to persuade legislators in Arizona, Florida, and Pennsylvania that every mail-in vote in their state should be ignored, but that would still be a much heavier lift, in terms of perceived legitimacy and the potential to provoke national unrest, than anything he or his party has yet attempted.
With the caveat that everyone should try, as hard as they can, to fill ballots out correctly and count them promptly, we are not currently, as far as anyone knows, on a direct path toward the United States’ first-ever breakdown in the continuity of government. But it’s true that it would only take a shift of a few points in the national polls (or an error in the polls by a few points, like in 2016) to bring one about. Which is probably something we should all talk about if and when the next non-Trump president is inaugurated!
Correction, Sept. 24, 2020: This post originally stated that David Souter would be on the Supreme Court to hear election cases; Souter retired in 2009, and the author meant Stephen Breyer. The piece also misstated that Pennsylvania would be the state in which Biden is most likely to be able to make a case for overturning results and suggested he would have already won the Electoral College if Pennsylvania’s vote is very close; the author meant Trump would have this opportunity, and that if Pennsylvania is very close it could be the state that tips the election.
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