What if the Supreme Court voids elections in four states and gives Trump another term?
It could happen. Here is how.
"You got to dance with the one that brought you
Stay with the one that want's you
The one who's gonna love you when all of the others go home
Don't let the green grass fool you
Don't let the moon get to you
Dance with the that one that brought you and you can't go wrong."
Song by Sam Hogan and Gretchen Peters, 1995
There will be hell to pay, whatever the Court does. Trump has already made it a matter of courage vs. cowardice. Everyone knows, he said, the election was stolen from him. Will Republicans do what is right or will they chicken out? Meanwhile, the legal establishment, the mainstream media, and probably 60% of Americans consider the election over and won fairly. Trump's lawsuit is beyond hopeless, they think. Sore loser Trump. It is an attack on democracy.
What will the Supreme Court decide to do with this hot potato? The green grass of establishment legal opinion might be tempting, but these Justices are not there because of the mainstream establishment. They are there despite them. Republicans are the ones that "brung them" to the dance.
There is another popular culture narrative taking place. The Trump re-election movie is in its final moments. We hear frantic desperation in the voices of Fox & Friends hosts describing this last-ditch attempt by President Trump. They sound hopeful that Ted Cruz has the silver bullet that will convince the Supreme Court to void elections in states Trump lost. We are watching a scene from a thousand movies, and we see a potential reversal of fortune, like when Perry Mason gets a confession or Shakespeare's Portia, says "I pray you tarry" and then lowers the boom.
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| Very, very confident Democrats |
The set-up to this drama is the apparent assurance of mainstream legal and media commentators, who dismiss the lawsuit as "nonsense;" "unprecedented;" "bizarre;" "groundless;" and "desperate." In storytelling, this is a danger signal. They are making the fatal mistake of hubris. Ha, the Greeks gave up. Let's take their huge wooden horse inside the gates and celebrate.
On its face, strong statements from attorneys regarding a legal outcome are persuasive, nearly dispositive. Attorneys tell us what to expect if an issue were to go to court, and they say this case isn't even close. They say a favorable ruling would break settled law on federalism, standing, and remedy. It would reverse multiple precedents and would reveal the court to be activist when they want to be seen as the opposite. They say that as a legal matter, the case is clear. Relax.
It isn't a legal matter. It is a political matter. We need not be blind or naive. The courts are a political branch that needs to pretend it isn't. This is a case that makes the effort to get these Justices onto the court worth the trouble it took Republicans to do it. This court case gives them cover to do what they need to do.
Most states, including the four in question, Georgia, Michigan, Wisconsin and Pennsylvania, made accommodations to deal with COVID by making voting by absentee ballot easier. The lawsuit asserts that the Secretaries of State and judges that set the rules for those state elections did not have the specific approval of the legislatures, which means that the elections were illegal from the get-go. Therefore, Republican legislatures have every right to ignore those election results and to exercise the power of choosing electors themselves.
Trump asserted early and constantly that only in-person voting was legitimate, except in Florida, where he voted absentee. His claims of fraud and switched votes had influence, even as they were found groundless by courts. Facts and evidence matter to courts, but less so to public opinion. Republican voters learned to have doubts. Election fraud here may not be exactly true, or provable, but it fits a desired outcome and it "makes sense." Trump should have won, and Biden's support didn't feel all that great, based on Republicans' circles of friends and media habits. Fraud would explain a surprising and unwelcome result. Besides, no-harm, no-foul. It isn't like America is being damaged by handing the election to Trump. Quite the opposite.
Who thinks this? Republicans voters--enough of them to swing a primary election.
The Supreme Court has an excuse, a legal fig leaf. Republican voters will thank and praise the Court if they decide their way. If they vote the other way, they will get harsh criticism from indignant Republicans, but without corresponding enthusiastic support. The legal establishment and Democrats will think they simply did their obvious duty. It is an asymmetric reward situation.
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| Scalia: "Get over it." |
Chief Justice Roberts will be troubled. As an institutionalist, he will understand and care about how damaging this partisan decision will be to the Supreme Court's credibility. There will be five partisan votes to give the election to Trump. Which is better for the Court, he will wonder? A five-four decision, with Roberts pointing out that this is unprecedented, dangerous, and wrong? Or a more decisive six-three decision, where Roberts makes the political decision to support a Republican majority, but pretends with all seriousness that he is applying a hard, rigorous interpretation of the Constitution, against all common sense. That would look better.
In the aftermath of the controversial Gore v. Bush decision Justice Scalia told unhappy Democrats to "get over it." Eventually they did. Roberts will conclude that eventually Democrats will get over this, too. They might as well dance with the ones that "brung them." Someone is going to be mad, so it might as well be Democrats. --- --- ---
Will it really work out this way? I don't know. If it does, this is why. There is a limit to my cynicism and this might be too much for the Court to do.
Sometimes, the crazy hopeless gambit doesn't work. "For a moment there, I thought we were in trouble," Butch Cassidy says, right before storming into a hail of bullets.
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| Final scene, Butch Cassidy and the Sundance Kid |
6 comments:
I was having a really nice morning...... and then I read this.
They have lost every court case so far, including one rejected by SCOTUS, as frivolous. If the Supreme Court legitimizes this one, hopefully the last, it will in effect be negating the entire legal system, not just democracy as a principle.
My hope is that Roberts shelves it, and then they reject it after the inauguration.
What the future portends is unknown. What has happened to American ideals under the Trump administration is becoming obvious. We have slipped from our role as "leader of the free world" into the void of uncertainty and chaos. The pandemic and firehose Trumpian propaganda makes Peter's scenario plausible. There is a coup underway and a majority our citizens believe our institutions will hold. Little do they know just how damaged and hollowed out these safeguards have become. Seventy five million Americans voted for Trump and have been made to feel cheated. Hear them roar!
The Republican motto has become: It is better to rule in hell then to serve in heaven.
What about the rest of the states? They had mail in ballots, too. Are those to be thrown out? If the Supreme Court throws out the election, then that means that 9 people will decide who becomes president from now on. Why bother to vote at all? Just let those people decide and be done with it.
It also means that the Supreme Court is meaningless. Their decisions are purely political, nothing to do with the law or the constitution. The consequences are that the states and the people within them will just ignore their decisions. They can say whatever they want because it doesn't matter. Just continue as you were.
The certification process will also mean nothing. Then there's the Electoral College. Who cares how they vote? The Supreme Court decides and the rest is just window dressing.
And I will never vote again.
The Sipreme Court just denied the case. Armageddon will have to wait.
And Trumpsters around the Country are convinced the Robert's Court is part of the Deep State. And in Michifan, Police and the National Guard are on High Alert, pending the Electoral Vote counting on Monday. I truly hope the Secret Service detail assigned to President Elect Biden and VP Elect Harris are on a high alert status as well.
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