In this rush to claim victory, Trump has been spurred on by ahistoric and legally untenable arguments from phony originalists such as Justice Brett M. Kavanaugh, who seemed to suggest in a recent concurrence that states have an interest in declaring a winner the day of the election. This Cinderella theory (that ballots turn into pumpkins at midnight) is simply ludicrous, as are other legal pronouncements making the rounds.
I asked a few legal gurus who are working on bipartisan or nonpartisan efforts to protect the integrity of the election if there is anything to the Cinderella theory. “There is absolutely no historical basis for the idea that all election officials must run a forced sprint to count ballots by any artificial deadline, whether it be midnight Eastern time, midnight local time, or any other time,” says David Becker, from the Center for Election Innovation & Research. “In fact, it’s rare that we know the president by election night.” He points out that “during the time of the founders, it was physically impossible to know the results of the election until weeks after, which is why the electoral college does not meet until six weeks after the election, and why every state does not certify election results until days or weeks after the polls close.” He adds: “In modern times, as we have members of the military voting from overseas, the importance of allowing their ballots to be received days after the election has become even more pronounced, and to require counting of valid ballots to be concluded by election night would disenfranchise hundreds of thousands of members of our armed forces, and their families.”
Nathaniel Persily of Stanford Law School agrees: “In fact, in every recent election there have been millions of ballots that are not counted on election night. Moreover, to do otherwise would disenfranchise overseas military voters whose votes frequently come in after election night.”
What about counting votes received after the polls closed but postmarked beforehand? Nothing in the Constitution prevents states from enacting such a rule. “Federal law (not the Constitution) sets Election Day as the first Tuesday after the first Monday in November,” Persily says. “However, around 19 or 20 states (if you count Pennsylvania) allow ballots postmarked either on or before Election Day to count if received some time thereafter.”
Becker points out that “states have had a variety of rules about receipt. Some require receipt by Election Day, others require ballots to be voted by Election Day, but allowed receipt several days later. Those were the rules in 2016 when President Trump won his election, and those were the rules decades before that.”
Trevor Potter, former Republican chairman of the Federal Election Commission and now president of the Campaign Legal Center, tells me, “What we get on election night is an estimate based on a partial — and unchecked — count.” This is always “subject to recounts and contests.” In fact, “official certification of vote totals is always weeks away from election night.”
Conservative activists are trying to get federal courts to second-guess state election officials and state supreme courts to cut off voting that may have been extended or otherwise changed to accommodate voters with covid-19 concerns. Conservatives’ feigned love of federalism goes out the window on this one.
Ironically, Republicans trying to cut voting short point to Article II, Section 1 of the Constitution, which provides that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors …” Well, doesn’t this help states withstand challenges? Not in the bizzaro world of not-at-all originalist thinking. Contrary to practice and understanding of the word “legislature” (which would delegate authority to election officials and be interpreted by state supreme courts), conservatives now want to argue that no one but the legislature — not election officials or state officeholders — can deviate from explicit legislation. (But didn’t Republican Gov. Greg Abbott of Texas do exactly that with his edict to allow only one ballot drop-off location per county? Yup, but consistency is not Republicans’ strong suit.) Potter opines that radical Republicans would go so far as to say “state constitutions are irrelevant.”
This “Independent State Legislature Doctrine,” Persily explains, leads to bizarre results, meaning that we could “detach the legislature from the state constitution for purposes of federal elections — most specifically, as in Pennsylvania, that a court cannot interpret voting rights provisions in the state constitution to modify or strike down state statutes without violating the U.S. Constitution.” If carried to its absurd end, “this doctrine might even prevent governors from being able to veto state legislation on presidential elections, given the primacy legislatures are given in the constitutional text.”
How can conservative federal judges claim that they understand state law better than state supreme courts? That’s the view of Chief Justice William H. Rehnquist joined by Justices Clarence Thomas and Antonin Scalia in Bush v. Gore in which, as Persily puts it, federal courts think a state court has gone “rogue.” That said, it is inexplicable that considerable deference should not be paid to state courts ruling on state law matters.
The bottom line: A significant group of right-wing judges no longer cares about consistency or originalist meaning. These judges seem hellbent on making sure “their side” wins. They might hope to delegitimize a Democratic victory, but they risk delegitimizing the courts, instead. It is a perfect example of why we need radical reform of the federal courts either to expand the Supreme Court, institute term limits for justices or curb its appellate jurisdiction.
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