Pennsylvania is Ground Zero for this experiment. It is the tipping-point state and the place where Trump’s corrupt machinations could have their most palpable impact.
In an interview, Pennsylvania Attorney General Josh Shapiro (D) shed some light on what this could look like in coming days.
“We have a sitting president who’s actively trying to undermine this election,” Shapiro told me. “He’s doing that because he knows that if all legal eligible votes are counted, he’s more likely than not going to come out on the losing side here in Pennsylvania.”
Pennsylvania state officials are in the extraordinary position of actively taking defensive steps to preempt a situation in which the Supreme Court helps Trump suppress untold numbers of lawfully cast ballots — as Trump has openly declared he expects it to do.
Shapiro is at the center of this effort. One main worry concerns the untold numbers of ballots that are mailed before Election Day but arrive after. The Supreme Court on Wednesday issued a ruling allowing for Pennsylvania ballots arriving up to three days afterward to be accepted.
But Shapiro bluntly warned that Trump and Republicans will still likely try to use those late-arriving ballots “as a hook to challenge all mail-in ballots.”
What might this look like? The fear among many Democrats is that, despite the Supreme Court ruling, the Trump campaign and Republicans could still challenge those late ballots — and use that to ask the court to halt the count of all mail ballots until that’s sorted out.
The counting of mail ballots will go on for days after the election. If Trump is ahead in the initial count of in-person Election Day votes — and far more Republicans intend to vote on the day itself — he could declare victory while seeking to invalidate uncounted mail ballots.
It doesn’t matter that much what Trump declares. What matters is whether the court is willing to halt the count.
Pennsylvania officials tried to preempt this by announcing that they will segregate all late-arriving ballots. The idea is to prevent Republicans from challenging those ballots and then using that to challenge all mail ballots, by claiming they’ve all been commingled and can’t be separated from one another, requiring a halt to the count until the legal dispute over the late ballots is resolved.
“A careful decision was made to try to stave off the anticipated legal challenges by Donald Trump and his enablers,” Shapiro told me, though he declined to comment on how their strategy might unfold.
There are many reasons to doubt such a scheme could succeed. But the Supreme Court hasn’t given us grounds for assuming there’s nothing to worry about.
In allowing the acceptance of late ballots, the high court let stand a Pennsylvania state Supreme Court ruling permitting that acceptance, rebuffing arguments that it infringed on the authority of the GOP-controlled state legislature to set election rules.
But the U.S. Supreme Court only declined to nix those late-arriving ballots for now, just before the election. And three conservatives — Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — indicated that after the election, they may revisit the question.
Worse, the justices said there’s a “strong likelihood” that the state Supreme Court’s ruling is unconstitutional, because if state courts can “override” the legislature on setting election rules, that renders its authority over those rules “meaningless.”
In short, three justices believe state legislatures wield near-absolute authority over election rules — and state courts cannot intervene to ensure that those rules don’t infringe on voting rights as outlined in state constitutions.
If Amy Coney Barrett and Brett M. Kavanaugh subscribe to this — and Kavanaugh already has, in a related decision in Wisconsin — five justices could invalidate untold numbers of late-arriving ballots after the election.
So we know the Supreme Court is open to hearing a dispute over those late ballots after the election and could invalidate them. But does that mean the court would also halt the count of the larger pool of mail ballots?
We don’t know. Probably not: In the Pennsylvania ruling, even the three conservative justices indicated reluctance, clarifying that if the late ballots are segregated, that would allow a “targeted remedy” against them.
But we know Trump and Republicans will try to make this happen.
Will those late ballots matter?
There’s also the more narrow matter of whether the high court will invalidate just those late ballots, which alone could conceivably matter in a very close election.
Shapiro conceded it’s unclear how many there might be. As of now, more than 3 million absentee ballots have been requested in the state, while just over 2 million have been returned — leaving nearly a million outstanding.
“We just don’t know” what’s going on with those ballots right now, Shapiro said. But he professed confidence that ultimately, Democrats will prevent both the invalidation of those ballots — and any broader scheme Trump might try. “I’m confident we’ll win again,” Shapiro said.
A Politico piece aptly summed up the moment with this line:
Never before in modern presidential politics has a candidate been so reliant on wide-scale efforts to depress the vote as Trump.
On top of that, Trump’s open effort to conscript the Supreme Court is only the latest in a long line of efforts to bend the government and the machinery of justice toward his reelection. The scale of the corruption is unprecedented. But, with a massive enough effort, it can be defeated.