Whatever happens on Election Day, one thing is incontrovertible: The American system of voting is an embarrassing, quasi-authoritarian mess, a set of ambiguous, loophole-filled procedures unfit for selecting a student council president, let alone the leader of the world's most powerful country. The consequence is that instead of spending the campaign's closing days deliberating over the merits of each candidate's policy proposals and character, we are mostly cycling endlessly through different scenarios about how the president of the United States might steal the election in cahoots with his new friends on the federal judiciary, GOP state legislatures, and lawyers ready to challenge every real or hallucinatory irregularity in all 50 states.
This is no way to operate a democracy. It is intolerable. Democrats across the country have been losing sleep for weeks over escalating rhetoric coming from President Trump and his surrogates about how they intend to litigate basically every ballot that isn't tabulated by Tuesday at midnight — even those cast unproblematically under existing state law. Democrats believe — rightly — that they need to win this election in a landslide so enormous that it is obvious on election night, or else we are in for a month of ugly litigation that will make Bush v. Gore look like a friendly moot court simulation. That was certainly the chilling takeaway of Trump adviser Jason Miller's Sunday morning interview with George Stephanopoulos on MSNBC. "If you speak with many smart Democrats, they believe that President Trump will be ahead on election night ... And then they're going to try to steal it back after the election."
Miller isn't freelancing here. The administration really believes that counting votes is "theft." They've been hatching this plan since the spring. Trump himself has said over and over that the winner must be known on Election Night even though most states don't certify their results for days or weeks afterwards. One of Trump's hand-picked Supreme Court nominees, Brett Kavanaugh, mused in a concurring opinion last week that late arriving ballots could "flip" the results of elections. Justice Neil Gorsuch concurred with this demented logic, claiming that "The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules."
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To be clear, four Supreme Court justices have now endorsed the view that state legislatures possess sovereignty that is beyond the purview of state supreme courts and elected governors. Down this road lies tyranny. And it gets worse.
An 8th Circuit Court of Appeals ruled over the weekend that the state of Minnesota, in an otherwise uncontroversial compromise, could not extend the deadline for receipt of absentee ballots, on this same completely lunatic theory of state legislative supremacy. And Republicans have been trying to persuade a federal judge to throw out 127,000 ballots cast legally in Harris County, Texas, under procedures green-lit by the GOP secretary of state, under a novel legal theory that boils down to this: Democrats should not be able to vote unless we say when, where, and how, and then we reserve the right to take it all back when the results are inconvenient.
No national Republican has denounced these tyrannical machinations. None will, because the whole party has disappeared down a rabbit hole of paranoid authoritarianism, the sole purpose of which is the preservation of white, conservative power against the clear wishes of a majority of the American people. The very idea of tossing out more than 100,000 votes cast by citizens under procedures approved by their own state government should be discarded as grossly immoral, an affront to the concept of democracy itself. Anyone who argues otherwise is a monster.
Step back and take in the broader context of this mess: In the midst of a once-in-a-century public health crisis that obviously called for an expansion of vote-by-mail options for those who don't want to risk their lives voting in person, Republicans in Congress stonewalled legislation to provide extra money for states to competently scale up their mail-voting operations, while the president himself relentlessly undermined public faith in the process.
Trump also had one of his trusty lickspittles gut the capacity of the U.S. Postal Service to deliver ballots on time, while Republican legislatures in swing states thwarted efforts to extend deadlines for ballots to arrive and refused entreaties from Democratic governors to start counting mail ballots prior to Election Day. The rancid cherry on top of this plot was unleashing a dizzying array of lawsuits across the land challenging both existing state laws for counting late-arriving ballots as well as pandemic-related policies adopted earlier in the year.
The threat that ties all of this democratic sabotage together is the Republican Party's now well-justified fear of the electorate. The party's nominees have won the popular vote for president just once since 1988, and Trump certainty won't be doing so this year. They haven't won a majority in three consecutive Senate elections since the 1990s. They look set to get obliterated yet again in the race for the House of Representatives. This is a minority party, entrenched in minoritarian institutions, casting about desperately for ways to avoid the reckoning.
The sense that the country is slipping away from them has been the animating force behind Republicans' systematic attempts to roll back voting rights in the states since the mid-2000s, and to lock in an artificial advantage by stacking the federal judiciary with judges who fundamentally don't believe that voting is a right that needs to be protected at all. And those justices have delivered for them, again and again, no more consequentially than when the Supreme Court plunged a knife into the heart of the Voting Rights Act in Shelby County v. Holder in 2013.
There is little question that, given the chance, the newly minted 6-3 conservative majority on the Supreme Court will rule for Republicans if their power is at stake in the next two months. Legal principles are irrelevant. All that matters is clinging to power by any means necessary. That is why Justice Amy Coney Barrett was confirmed eight days before a national election in which half of the electorate had already voted.
Trump's unique and rhetorically deranged attacks on any election result that he doesn't like has certainly made the problem worse, but it is best to think of this as the culmination of a long Republican project to prevent as many people from voting, and to throw out as many ballots cast by those who try anyway, as possible. What Republicans are trying to do is to impose a softer version of the authoritarianism that reigned in the South from after Reconstruction. Chuckle if you will, but Southern Apartheid lasted nearly 100 years and was an enormously successful system of circular power and white aggrandizement. Republicans are emulating it because it worked for white supremacists once before and it could certainly work again.
If Joe Biden and the Democrats somehow manage to navigate this morass of voter suppression, election violence, and ominous threats and capture the presidency, the Senate, and the House this week, they must move quickly and decisively to democratize a country that is rapidly sliding into competitive authoritarianism. The Elections Clause of the U.S. Constitution unambiguously grants Congress the authority to exert its authority over this archipelago of hateful, extra-judicial election rigging.
And that is what they must do. Outlaw racist voter ID laws. Require ballots postmarked by Election Day to be counted. Mandate that states tie the number of polling places to population targets. Re-enfranchise every formerly incarcerated person in the country, whatever the racists in state government say. Clean up the ridiculous ambiguity over the rules of the Electoral College while we wait for the National Popular Vote Interstate Compact to become law in enough states to end this madness forever. Enact sweeping new criminal penalties for voter suppression activities. Register every American to vote automatically when they turn 18 (or better yet, lower the voting age to 16). Refuse to admit members of Congress who won their seats through blatantly lawless voter suppression. Deploy force against states that refuse to comply.
Apologize for nothing.
H.R. 1, the first legislation passed by the Democratic House of Representatives in 2019, does some of this. But it doesn't go far enough. To ensure that the United States remains a democracy in the coming years, Democrats will need to enlarge not just the Supreme Court but also the district and appellate courts. Trump-appointed majorities on these institutions are bent on subjugating the American people to ludicrous theories of minority rule and legalized autocracy. This Supreme Court will gut the Democrats' signature voting rights legislation. It will scotch statehood for Washington, D.C. It will do whatever it needs to preserve Republican power, regardless of how absurd the underlying constitutional logic.
Remember: The same Constitution that Amy Coney Barrett and her friends believe is frozen in amber grants Democrats the right to alter the size of the courts, and to impose new rules on recalcitrant neo-authoritarians until such a time as Republicans can prove affirmatively that they believe in both the right to vote, and the right to have all votes counted.
Democrats can either take these radical steps or watch helplessly as Republican courts and legislatures disappear American democracy out of a helicopter.
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