A not-very-fun game my lawyer friends and I have been playing over the past several weeks is called: “What are you more worried about, white supremacists with automatic weapons terrorizing polling places, or the U.S. Supreme Court announcing that ballots will not be counted in Pennsylvania?” It’s an oddly-specific manifestation of our current election stress, tethered to a strangely extra-legal set of hypotheticals. It captures the anxieties of a class of people who know exactly how to produce complicated statutory arguments about such breezy topics as state legislatures appointing their own slate of electors, but do not have a clue what to do about lawlessness that happens both above and below the formal guideposts of the law (the weapon-wielding being “below” the law and the Supreme Court allowing state legislatures to invalidate votes being “above” it).
There is legitimate reason to be concerned about polling place violence and intimidation. Almost 100 vehicles driven by Trump supporters, and egged on by Donald Trump Jr., surrounded and followed a bus ferrying Biden/Harris supporters to a rally as it drove up I-35 in Hays County, Texas on Friday. Some of them armed, the drivers of this “Trump train” waved Trump flags and forced the bus to a halt on the highway, leading the Biden campaign to cancel their Friday event in Austin. On Saturday night, Trump himself tweeted a video of the Trump supporters following the Biden bus saying, “I LOVE TEXAS!” At a campaign rally Sunday, the president further insisted that his supporters were “protecting” the bus. “But it is something, did you see the way our people they … you know they were protecting his bus yesterday, because they’re nice.” Over the weekend similar “Trump trains” of his supporters, often brandishing guns, closed bridges in Virginia, New York, New Jersey, California, Colorado, and all around the country.
Should caravans of armed citizens be able to surround and terrorize cars on the highways, or close down bridges? There are laws on the books prohibiting the intimidation of voters as they attempt to cast ballots. There is also precious little to be done by lawyers about these situations right now—sure, a carefully argued case may win in the long run, but right now what matters is whether these threatening shows of violent force persuade reluctant voters that coming out isn’t worth the trouble. The 1982 consent decree that previously prevented GOP operatives from harassing voters is not in effect in this election, having been lifted by a federal court in 2018. That means there is even less immediate clarity on what may or may not be allowed this year. Michigan Secretary of State Jocelyn Benson tried to ban people from open carrying guns at polling sites on Election Day, for example, but the measure has thus far been blocked in the courts.
During the first presidential debate, Trump said he was “urging my supporters to go into the polls and watch very carefully.” An “army” of poll watchers will fan out this week with the mandate to record and chronicle “vote fraud” so as to sow doubt about the results of the election. Jessica Huseman of ProPublica has written reassuringly that so far, this “army” seems relatively small. The question of what to do about these people remains, because the effect they have on frightened voters is beyond the scope of the law. Virtually all of the intimidation, the deceptive videos, the threats, the stalking about while armed happens at a place below the reach of the law. I can write 25 articles between now and tomorrow clarifying which parts of armed “trains” of Trump supporters closing down highways and threatening vehicles is illegal, and what police should rightly do in response, and why police continue to do nothing, and why voter fears of armed poll watchers are not irrational. But this is no longer a legal question, it’s a question of power, police powers and institutions. Should federal agents have been able to pepper spray peaceful protesters in Lafayatte Square? Should protesters have been hauled into unmarked vans in Portland? We thought the answer to those questions were self-evident, too.
For a piece in the Atlantic, Barton Gellman pressed prominent legal scholars for answers to questions about what should happen if Trump uses his presidential power to try to steal the election using tactics foreclosed by most rational readings of the law. In one scenario, Gellman posited that Trump would instruct federal authorities to investigate “voter fraud,” while really instructing them to stop the full count. In response to questions on this scenario, Lisa Manheim, a University of Washington law professor, “figuratively threw up her hands” wrote Gellman, before telling him that “baked into your question is the idea that the president would somehow use legal means to then commit unlawful actions, so I understand why you’re asking it, but conceptually speaking, you’re not really asking a legal question,” she said. “You’re asking more just a question of power, when [legal pretexts] lend legitimacy to that exercise of power.”
By that same token, there are currently at least four and perhaps, after last Monday, five votes at the Supreme Court that might be willing to use the minority opinion in Bush v. Gore to argue for the authority of state legislatures to stop counting lawful absentee ballots in Pennsylvania or Wisconsin or North Carolina after election day. That is disturbing, particularly because the holding in Bush v. Gore was never intended to be used as precedent, and they are citing a Rehnquist concurrence that garnered just three votes. They are willing, to paraphrase Prof. Manheim, to use the trappings of a legal argument to commit the illegal act of stopping the counting of lawful votes. Like the Trump trains, the right question here is not “how can that be legally permissible” and instead, “wherein lies the power to stop it”?
Here is how I am thinking about the answer to the question of who has the power to stop it: The Supreme Court does not actually have the final say in how legally cast votes will be counted, and whether some will not be counted. The Supreme Court may be asked to issue an opinion on that subject, and they may well give one if they are asked. But though the parties and the public may accede to whatever they hand down, they also may not. At some point, as Sherrilyn Ifill noted on this week’s Amicus, the court will make the decision as to whether to delegitimize itself by handing down poorly-reasoned, error-riddled late-night opinions on the counting of votes. And the rest of the country will have to decide whether it chooses to abide by these poorly-reasoned, error-riddled late night opinions, or to ignore them because while they bear the trappings of power, and politics, they also do not hold the force of law.
So by my lights, I can write another 25 articles between now and tomorrow explaining which parts of Supreme Court orders last week violated norms and precedents about how we understand voting, be it Brett Kavanaugh incorrectly and dangerously suggesting that elections are “flipped” when you count any votes that come in after Nov. 3, or Samuel Alito recklessly writing that there’s a “cloud” surrounding the lawful counting of mail-in ballots that arrive after Election Day. But note that this, too, is no longer a legal question, no longer a question of what the “correct” answer is. It’s a question of power, judicial integrity, and institutions. Or as Prof. Manheim seemed to be explaining to Gellman, all of the processing and interrogating and workshopping about how legal institutions should respond to purely political actions is very interesting. It’s also got nothing to do with law anymore. These too, are questions about power.
Those of us who think and write about the law tend to be in love with the idea that every democratic problem has a concerete solution that begins and ends with a declaration that X or Y is “illegal” or “legal,” and that a spirited war-gaming and airing of all those positions will result in a definitive answer that halts illegal actions in their tracks. Boom. But on the eve of the 2020 elections, we find ourselves caught, pincered between two extra-legal conversations, one happening beneath the water line, in which threats of violence and intimidation at the polls may influence the outcome, creating a sense of national emergency that in turn threatens civil rights. The other is unfurling above the visible legal firmament, in the sacred zoom hallways of the highest court of the land, where decisions about the counting of ballots may also end up influencing the election. There too, there is little that the “law” or “lawyers” will be able to do to affect the outcomes. We rely on the aphorism that the United States is a country of laws, not men. But beyond the realm of casebooks and statutes and the constitution, is a world in which the law cannot reach, although politics surely can. We thus enter the 2020 election pinched between several fearful outcomes, many of which may well happen outside the bandwidth of what laws and norms can constrain.
It is worth making explicit, too, that the reason white men with guns are free to terrorize motorists and voters and activists is because these two spheres actually reach around and touch each other on the other side. There is a connection between what happens at the oracular high court and which citizens feel unconstrained by law. That bringing guns to public spaces to terrorize people is largely protected for some citizens but not others is not an accident of formal “law,” it is as a consequence of the courts themselves. If they persist in making fatuous arguments about throwing out absentee ballots, Justices Alito and Kavanaugh will also simply render themselves tricked out “poll watchers,” and we should treat them as such. And if and when there is chaos and fear, and uncertainty and even violence as a result of self-styled poll watchers, the high court will attempt to cast itself as neutral oracle that can step in to solve the lawlessness, even though the court has fomented uncertainty and the uncertainty has fomented the need for court intervention. That’s not law either.
There is good news buried in the fact that the law cannot necessarily resolve the violence occurring both below the surface and above the horizon of our operative legal institutions: If the lawyers can’t fix these things, the public still can. There is some value in stepping away from infinite loops of “is this legal” and into the breach of “will the electorate allow it.” So yes, I worry that there may not be purely legal answers for the legal-sounding breakdowns that may descend upon us in the next few days—whether they take the form of sanctioned or unpunished polling place vote suppression, or sanctioned and unpunished judicial vote suppression. But I also know that the party that cannot fairly win an election is resorting to illegal, and also extralegal, attempts to grab power. And if the president and his lawyers and his followers get to invent “law” as it suits them, the rest of us are freed in some sense as well. If we can conclude for ourselves that silencing voters is impermissible, regardless of what the “law” says, we are already well down the path of refusing to tolerate it, whether it emanates from the lofty heights above the law, or the violence that seems to surge below it.