But, now that the Senate has confirmed Amy Coney Barrett to the Supreme Court — and now that the court just issued a controversial ruling in Wisconsin that could help Trump — is it possible the court might save Trump if he’s on track to lose, as he has openly declared he wants?
It’s unlikely. A lot of things would have to line up perfectly for that to happen.
In the Wisconsin decision, the eight-justice court ruled that ballots that arrive after Election Day, but were mailed before, will not be accepted. The ruling from the five conservatives is stirring angst because it suggests more rulings that could tip the election to Trump.
But this will only happen if a series of unlikely scenarios all line up.
Fears of an intervention
One big fear is this could mean the high court will end up overruling a recent Pennsylvania state supreme court decision allowing for the acceptance of mail ballots that arrive up to three days after Election Day.
In the Wisconsin decision, the court invalidated a lower court ruling allowing for the acceptance of ballots after Election Day on the grounds that the lower ruling overrode GOP state legislators in determining how to run elections, including during a pandemic.
This might suggest the court will also overturn the Pennsylvania decision. In that case, the state supreme court also overrode the GOP state legislature, which opposed the extension. And when the eight-justice high court previously heard this case, it deadlocked 4-4, with all the conservatives being willing to restore the state legislature’s will.
With Barrett now on the court, there might be five conservative justices now prepared to do this.
But here’s the rub: To do so, they’d have to contradict a principle that Justice Brett M. Kavanaugh articulated in his Wisconsin opinion. He argued that Wisconsin couldn’t extend the period for accepting ballots because this constituted “changing state election rules too close to an election.”
Kavanaugh described this as an affront to the democratic process, because it constituted a change when “an election is imminent.”
But if the Supreme Court now nixes the extended deadline in Pennsylvania, this would also constitute changing election rules when "an election is imminent.”
That’s because untold numbers of Pennsylvanians have shaped their voting schedule around the expectation that ballots arriving after Election Day might be accepted — because the high court previously deadlocked, which means the court itself allowed this schedule to proceed.
“I have to think that at least one of the [conservative] justices would have real qualms about upsetting the apple cart this late,” Stephen Vladeck, a law professor at the University of Texas at Austin, told me.
Now, it might be folly to expect consistency. And they could skirt this by arguing that in Pennsylvania, it was originally the state supreme court that changed the rules amid an election, and the high court is undoing that.
But the conservative justices cannot get around the fact that a change now would be undoing a state of affairs that the court itself created for voters, by deadlocking.
“The court would be doing this literally on the eve of the election,” Vladeck said, adding that this would be “past the point where at least some Pennsylvania voters would be able to cast a lawful ballot.”
An unlikely scenario
It’s also increasingly unlikely that there will be enough late-arriving ballots in Pennsylvania to make the difference.
That’s because enormous numbers are voting by mail earlier than expected — more than 1.7 million people in Pennsylvania alone — meaning far fewer will vote by mail toward the end. That, combined with Joe Biden’s more than five-point lead there, makes the window for this to swing the outcome very small.
And for this to work, it would all have to come down to Pennsylvania, when in fact Biden is likely to win other states that mean Pennsylvania alone isn’t decisive.
“You’d have to have enough late-arriving ballots to make a difference in a state and have that state make the difference in the election,” Vladeck said.
Yet another thing to fear
Still another possibility might be that the high court finds a way to halt the counting of mail ballots even if they arrived on or before Election Day. Kavanaugh’s ruling also vaguely declared that if the results aren’t announced on or right after Election Day, it might create “suspicions of impropriety.”
This could theoretically be twisted into a rationale for halting a post-Election Day count.
That declaration is absurd, since the whole point of allowing for weeks to pass before certification is to avoid such suspicions. And as election expert Rick Hasen notes, there isn’t any result to cast doubt upon until all votes are counted.
“The reality is that we never know an official winner on election night,” Hasen said.
Beyond this, Vladeck notes that such a ruling is unlikely: It would require five conservatives to break with their hallowed principle of state legislative control over voting rules, since those legislatures themselves created vote-by-mail systems.
Don’t let your guard down
None of this means anyone should relax vigilance. As Brian Beutler notes, given that Trump has told us he’s expecting the court to save him, gaming out every scenario is necessary as a defense.
But this will likely prove another way that Trump’s efforts to corrupt the election are getting thwarted. Given that Trump’s telegraphing of his schemes is what’s driving millions to vote early and remain on high alert, it might also prove another way his corruption blew up in his face.
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