As you probably know by now, we are unlikely to learn the winner of the presidential race on the night of Nov. 3. For the Trump campaign, that’s a key part of the plan: to create uncertainty, anger and chaos as the counting of an unprecedented number of mail ballots takes days or weeks; suppressing as many votes as possible; and tossing around unfounded charges of fraud to delegitimize the results.
And that plan, it is becoming increasingly clear, has an endgame: Whatever else happens, whatever the actual results show, President Trump is counting on the Supreme Court to declare him the winner.
Which is why it’s particularly important to him that his nominee to fill the seat of the late Ruth Bader Ginsburg be confirmed as quickly as possible.
You don’t have to take my word for it, because on Tuesday, both Trump and Vice President Pence came right out and said it. Here’s Trump talking to reporters at the White House:
We need nine justices. You need that. With the unsolicited millions of ballots that they’re sending, it’s a scam, it’s a hoax, everybody knows that. And the Democrats know it better than anybody else. So you’re going to need nine justices up there, I think it’s going to be very important. Because what they’re doing is a hoax, with the ballots.
You’ll note that Trump does not simply say that there will be disputes that the Supreme Court must resolve. After all, it can do that with eight justices; even if there is a 4-4 tie in a particular case, it just means that the decision of the appeals court stands.
But that could mean that either Trump or Biden might prevail on the question at hand, which is not what Trump wants. Instead, Trump says that nine justices — which means six conservatives — must be in place so they can invalidate results based on the “scam” and “hoax” by which people have voted.
The vice president said much the same thing on Fox News in only slightly less blatant terms: “With all of the talk about universal, unsolicited mail-in balloting,” Pence said, it’s “all the more reason that we should have nine justices on the Supreme Court to be able to resolve any issue that may arise.”
It’s almost impossible to overstate the magnitude of the coming legal storm over this election; in fact, it is well underway. There have already been lawsuits over voting questions in 41 states this year, plus D.C. and Puerto Rico.
The latest worry is about “naked ballots” in Pennsylvania, where the state Supreme Court just ruled that mail ballots that are not submitted with the interior security envelope — potentially as many as 100,000 in the general election — must be trashed.
We can presume that most of the questions now under litigation will be resolved by Election Day, whether or not you like the rulings. But what happens afterward?
It’s worth remembering how the legal battle played out in just one state in 2000, when the Bush and Gore campaigns fought intensely through the Florida courts over which ballots should count and how they should be counted. When the questions seemed temporarily resolved with a ruling by the Florida Supreme Court saying that the counting of ballots should continue, the Bush campaign had an ace in the hole: the U.S. Supreme Court.
In Bush v. Gore, one of the most notorious rulings in the court’s history, the five conservatives used some preposterous legal reasoning to shut down the counting in Florida and hand the presidency to George W. Bush. It was so shameless that in their own decision they declared that their judgment should never be used as precedent in a future case.
Now imagine a repeat of Florida 2000, but in five states, or 10. Complicated questions of which votes get to count, Republicans demanding that votes be thrown out while Democrats demand that they be counted, rulings by state courts that go the Democrats’ way, and then a final intervention by the Supreme Court.
A Supreme Court whose conservative majority is far, far more partisan than the one that came to Bush’s rescue in 2000.
There’s one more possibility to consider, one even more disturbing: Republicans at the state level could simply overrule their own voters, declaring that Trump won their state despite what the returns say. Since the Constitution says that state legislatures decide the manner in which electors are appointed to the electoral college, this isn’t out of the realm of possibility.
Barton Gellman of the Atlantic reports that Republicans are already preparing:
According to sources in the Republican Party at the state and national levels, the Trump campaign is discussing contingency plans to bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority. With a justification based on claims of rampant fraud, Trump would ask state legislators to set aside the popular vote and exercise their power to choose a slate of electors directly. The longer Trump succeeds in keeping the vote count in doubt, the more pressure legislators will feel to act before the safe-harbor deadline expires.
The safe-harbor deadline is Dec. 8, the date by which electors must be appointed (they will formally choose the next president on Dec. 14). The chair of the Pennsylvania Republican Party even went on record to Gellman, saying that having the state’s legislature simply give Trump its electoral votes is “one of the available legal options” they’re considering.
You might ask, “How could such a thing be constitutional?” It’s a good question. While the Constitution gives state legislatures the power to determine how electors are chosen, surely the Supreme Court would never allow them to change the manner in which they do so after the election has already taken place.
But if Bush v. Gore taught us anything, it’s that one should never say “The Supreme Court would never do that.”
And Republicans in Congress will line up behind the move, just as they’re doing now on the question of filling Ginsburg’s seat before the election.
In their quiet moments they may worry about the effect on the stability of our system, or what a betrayal of democracy it represents, or whether they have any shred of conscience left. But they will push those troubling thoughts out of their heads. Because power will be at stake — and when power is at stake, there is virtually nothing the Republican Party, and Donald Trump, will not do.
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