Before a single vote was counted, President Donald Trump made clear that he expects the courts to save him from the people.
He would destroy the legitimacy of the courts if he could, if that’s what it takes to, in the words of Justice Brett Kavanaugh, “flip the results.” He rushed through the appointment of Justice Amy Coney Barrett so he could be sure he had five votes on the court, Chief Justice John Roberts having disappointed conservatives because he puts the legitimacy of the Supreme Court and the judicial system ahead of Trump’s partisan agenda.
Tuesday night, Trump said he would go to the Supreme Court to stop the counting of absentee ballots. Wednesday morning, before anyone had called Wisconsin for Joe Biden, Trump’s supporters demanded a recount.
They will demand recounts in any state Biden won narrowly and argue against recounts in any state Trump won. Consistency has nothing to do with it. This is about winning, holding on to the states they have won while demanding recounts in states they lost.
State law governs how elections are conducted and when recounts are necessary. In Wisconsin, for instance, a recount can be requested when the margin of victory is less that 1%, as it may be here. But recounts rarely change results. In 2016, there was a recount in Wisconsin, and fewer than 150 votes changed from one column to the other. Recounts aren’t going to re-elect Donald Trump.
Trump will also try to flip the result by throwing out as many Biden votes as he can. Since Biden voters tend to be more concerned with COVID-19 and more likely to use an alternative to in-person voting, the Trump campaign is focusing on absentee ballots and how it can stop them from being counted.
As a matter of law, there are no results to flip until all the votes are counted. Under Trump law, you throw out or refuse to count enough ballots to change the result of the election. Trump never expected the people to re-elect him.
But Pennsylvania, the focus of so many of these lawsuits, may not even matter. Trump might carry the state, although that is far from certain. In close races, the important question is where the outstanding votes are coming from, and in Pennsylvania, the uncounted ballots are primarily from the state’s two largest cities, where Biden had done well enough on Wednesday to cut Trump’s lead substantially. If Biden has 270 electoral votes without Pennsylvania, all the Pennsylvania lawsuits are irrelevant.
And if the counting of late-arriving ballots turns out to be decisive, the Trump campaign will go to the Supreme Court to try to throw out the ballots. Those are very big if’s.
The biggest “if,” of course, is whether the Supreme Court will be willing to throw out ballots cast in accordance with state law. Since the rash of lawsuits began, television lawyers [as distinguished from lawyers who have to argue in real courts] have been pontificating about what principle the Supreme Court is following in deciding which cases to take. The consensus seems to be that the court will stay away from cases where the state court has upheld state law, that they are more likely to intervene if a federal court is telling the state what to do.
Nice work, guys. The problem with that theory is the pesky case of George W. Bush v. Al Gore, where the court intervened to stop a recount that was being conducted under state law. So much for federalism, or states’ rights, which is almost always a cover for arguments about race, or the rights of workers, or federal support for poor families.
We leave it to the states, except when it comes to picking a president.
Justice Stephen Breyer reportedly spent a good deal of time trying to convince retired Justice Sandra Day O’Connor to stay out of that decision. Years later, she reportedly said that the court should have stayed out. Former Justice John Paul Stevens told me that Bush v. Gore had done more to undermine the legitimacy of the Supreme Court than any case decided during his long years on the court.
There is no question that Chief Justice Roberts takes seriously the issue of the court’s legitimacy and will side with liberals in trying to keep the court from flipping the election result. If Ruth Bader Ginsburg were still there, that would make for five votes. With her gone, the question is whether Roberts can convince one of the conservative five to join him.
With Trump’s effort to turn the courts into political institutions, where his nominees are expected to be loyal to him regardless of what he asks, how can you expect those who are not Trump voters to respect the decision? The rule of law depends on that respect. Decisions are followed not because they are enforced by an army of federal agents – even if one was needed in the 1950s and 1960s to escort Black children to school – but because we respect their authority.
Donald Trump has put a target on the backs of the Supreme Court justices. He doesn’t care what it costs – to them or to the country. I have to believe that at least five justices do care. Nothing less than the constitutional system of checks and balances, with the judiciary protected from political pressure by life tenure, is at stake.