Last night two things happened thirteen minutes apart. At 4:30 pm California time, the Supreme Court of the United States issued a decision in the Wisconsin dispute over whether late-arriving mail-in ballots should be counted. Kavanaugh’s concurrence raised some eyebrows.
Exactly thirteen minutes later, Trump tweeted something so inaccurate that Twitter hid it from view with a warning:
The timing is not a coincidence, but more on that later. First, some law.
There is no rule that says ballots must be counted on November 3. Trump has no authority to make up such a rule. The courts have no authority to enforce such a rule.
Each state conducts its own elections according to its own rules. The Constitution tells us that each state sends “electors” to Congress. That’s 41 days after the election.
The 41 days is to give states time to finish counting their votes and resolve any disputes or discrepancies. States have their own deadlines for when such discrepancies must be decided. The state with the earliest deadline is Delaware, which requires that the state certify the results of the election a few days after Election Day.
The “tradition” of the winner being announced on election night started with the rise of network television. Networks “project” the winner based on data including exit polling, and what the vote count thus far tells us about how the state will vote. (It doesn’t take a crystal ball, for example, to project that California and Washington D.C. will vote for the Democratic candidate, and Wyoming and West Virginia will go Republican.)
Trump is confusing network projections with Reality TV. He thinks it’s all about the show. In fact, elections are regulated by state and federal law.
Dozens of Twitter Peeps last night assured me that Kavanaugh’s concurrence in the Wisconsin case means that the 6-3 conservative majority will make up the rule that the votes must be counted on election day and they will stop the counting at midnight on election day and throw out all votes uncounted, thereby handing the election to Trump.
Like this:
A few major publications also got in on the act. The Atlantic declared: Brett Kavanaugh Signals He’s Open to Stealing the Election for Trump. Vanity Fair similarly assured us that Brett Kavanaugh’s Wisconsin Ruling Laws the Groundwork to Hand Trump the Election.
The Supreme Court’s Wisconsin’s opinion is here.
Take out your notebooks. It’s time for Election Law 101.
Wisconsin law states that ballots not received by election day will not be counted. A few weeks before the election, a federal district court overturned the law and extended the deadline.
State legislatures have the power to set the rules for elections. Laws must be in place and clear at the time of the election, and the election must be governed by those laws. The majority in the latest Supreme Court deision, including Kavanaugh, held that state legislatures have the power to determine deadlines and make rules. Federal courts should not butt their noses into state business. Therefore, the Federal District court screwed up by extending the deadline.
The majority reasoned that voters are not disenfranchised if they cast their ballots in an untimely manner. Voters, for example, can’t show up at midnight long after the polls have closed and insist that if their votes are not counted, their rights have been trampled. The Court says they should have gotten to the polls in time.
What about COVID scaring people from the polls and the postal service slowed down because of the gross mismanagement of Trump’s administration? The Court basically said tough beanies. If you want your vote to count, cast your ballot in a timely manner according to the rules established by the legislature.
Kavanaugh’s concurrence
(A concurrence is when the justice agrees with the majority, and joins the majority vote, but has different or additional reasons.)
Kavanaugh gave three reasons for his decision.
- First, the District Court changed Wisconsin’s election laws too close to the election. (Notice: Courts cannot change the rules too close to the election.)
- Second, the District Court overstepped the limited role of federal courts. The District’s court’s rationale was that Covid changes things, but it’s up to the state legislature, not federal district courts, to decide how to best protect the health of citizens.
- Third, the District Court doesn’t understand that deadlines are always necessary for elections. Voters are not disenfranchised if they miss the deadline. If they want to vote, they need to vote in a timely manner.
After talking about the importance of deadlines, Kavanaugh quoted a law professor, who said:
Late-arriving ballots open up one of the greatest risks of what might, in our era of hyperpolarized political parties and existential politics, destabilize the election result. If the apparent winner the morning after the election ends up losing due to late-arriving ballots, charges of a rigged election could explode.
Read it again. The sentence is about late-arriving ballots, or ballots that arrive AFTER the deadline.
Yet, from Kavanaugh’s concurrence, people are concluding that the Supreme Court will decide the election in Trump’s favor by making up rules (like votes must be counted on election day) when that is actually the opposite of what they are saying. They are saying courts can’t make up rules.
Kavanaugh mentioned Bush v. Gore, which compounded the panic. Social Media logic goes like this:
- Bush v. Gore means courts decide elections.
- Kavanaugh referred to Bush v. Gore
- Therefore, Kavanaugh is signaling that the Court will decide the election for Trump.
Um, no. There are a few things wrong with the above. (I typed that in the understatement font.)
Here’s a quick overview of Bush v. Gore
The counting of ballots in Florida in 2000 was a mess. The election was a mess. The ballots were a mess.
The Florida Supreme Court stepped in and ordered a manual recount. Different counties conducted their recount differently.
The two questions put to the Supreme Court were:
- Did the Florida Supreme Court violate Article II Section 1 Clause 2 of the U.S. Constitution by making new election law?
- Do standardless manual recounts violate the Equal Protection and Due Process Clauses of the Constitution?
The US Supreme Court overturned Florida’s Supreme Court decision. (Notice there is a difference between a state court interpreting state law and a federal court interpreting state law.)
One of the rationales given by the Supreme Court was that the Florida Supreme Court was basically making a new election law.
Kavanaugh in the Wisconsin case agreed that the federal district court has no business changing state rules. He mentioned Bush v. Gore to support his contention that courts should not try to rewrite state election laws. See the last sentence:
Kavanaugh is citing Bush v. Gore to say that courts should not rewrite rules. This is not the same as saying that the Supreme Court is positioning itself to make up new rules (like all votes must be counted on election day) that may benefit Trump (if absentee votes are counted last).
In fact, Kavanaugh is saying the opposite of what people are saying that he is saying. Why? It appears that people are confusing “late-arriving ballots” (ballots that are illegal under state law because they were not cast in a timely manner) with “ballots counted after election day.”
These are not the same.
What Kavanaugh certainly did was mirror some of Trump’s language about a rigged election if late-arriving ballots decide the election. He is specifically talking about ballots that arrive after the deadline, but he used the phrase accusations of a “rigged election.”
In practical terms, what the Supreme Court did was make life difficult for poor Ben Wikler (chair of the Wisconsin Democrats) by forcing him to scramble to make sure all the ballots are submitted by November 3:
Humorous aside: Amy Barrett made a big deal about the fact that she is an originalist, meaning that she interprets the Constitution as it was originally intended. Well, in the 18th century–before telephones and the Internet–it was literally impossible to know who won the presidential election for weeks or longer. For that matter, women were not considered people and couldn’t even vote, so it’s sort of ironic to have a female originalist justice.
Now, about the timing of Trump’s tweet (shortly after the Supreme Court handed down its case):
Earlier Trump flaunted his new Supreme Court justice.
Trump is trying to freak you out. Remember when I wrote about the Strongman Con? Don’t let Trump con you. Focus on turning out the vote and ignore the bluster.
I awoke this morning to find Twitter still in a panic meltdown, and no wonder: Here is Trump literally inventing laws out of thin air.
Trump making up laws, though, does not mean they are real.
Dear People in a Panic: Why do you all give Trump so much power over you? He tells you to panic and you do. When you panic, you help him appear mighty. He isn’t. The voters are.
Panic is unbecoming. What is becoming is the ability to solve problems as they are put before us.
People on social media ask me to make them “feel” better. I cannot guarantee a happy ending. If enough people vote for Biden, democracy will survive. A last-minute surge in Trump voters means 4 more years. It’s up to us.
That’s what’s wrong with panic. You act like it’s up to someone else.
If it didn’t cause you all so much pain and angush, headlines like these might be a good strategy: Brett Kavanaugh Signals He’s Open to Stealing the Election for Trump. Why? Because the right wing extremists on the Supreme Court don’t think they are corrupt. They believes states should be able do as they please, corporations are people, money is the same as speech, and an embryo has the same rights as person. The last thing they want (trust me) is to behave in a way that in fact appears corrupt.
Court cases require evidence. The enforcement of a law must be in question. The Supreme Court is NOT going to let Trump manufacture laws and facts and then pretend the laws are real and hand the presidency to Trump because they like him. Really, it won’t happen.
Late-arriving ballots are only an issue when an election is so close that they matter. So vote in large enough numbers so they don’t matter.
And get your friggin’ ballot in by the deadline because we have at least three Supreme Court justices who (to put it mildly) are sticklers for rules.