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I would like to engage with this line of argument without any shade to Nate. I want to zero in on three pre-election cases in PA, NC, and MN.
Start with PA: Four Supreme Court justices made it quite clear that they wanted to throw out thousands of legal ballots in this state.
Start with PA: Four Supreme Court justices made it quite clear that they wanted to throw out thousands of legal ballots in this state.
Kavanaugh, Gorsuch, Alito, and Thomas tried to block a Pennsylvania Supreme Court decision on the basis of a truly radical constitutional theory. SCOPA extended the mail ballot deadline by three days; all four justices thought that was unconstitutional. https://slate.com/news-and-politics/2020/10/supreme-court-pennsylvania-election-late-ballots.html?via=recirc_recent
SCOTUS' conservatives spent the entire election season instructing federal courts not to intervene in state election processes. Then the PA Supreme Court ordered a modest expansion of voting rights, and four conservative justices tried to shut it down. Appalling hypocrisy.
Kavanaugh then wrote an alarming opinion that used Trumpian rhetoric to cast doubt on the legitimacy of mail ballots. He also awarded himself the power to prevent state courts from enforcing state election law—an immense intrusion on state sovereignty. https://slate.com/news-and-politics/2020/10/brett-kavanaugh-mail-ballots-trump-fraud.html
Seriously—any honest conversation about the Supreme Court's behavior throughout this election needs to assess Kavanaugh's misleading and bizarre opinion supporting Bush v. Gore on steroids. (He ultimately corrected one of its many errors.) https://slate.com/news-and-politics/2020/10/brett-kavanaugh-voter-suppression-wisconsin-mistakes.html
PA defused this case by promising to segregate late-arriving mail ballots that *were entirely legal* under the PA Supreme Court's decision. Alito, Thomas, and Gorsuch announced that they were eager to toss out these *legal ballots* after the election. https://slate.com/news-and-politics/2020/10/pennsylvania-late-ballots-supreme-court-alito.html?via=recirc_recent
So here's scenario #1: The 2020 election comes down to Pennsylvania. The Pennsylvania election comes down to late-arriving ballots. SCOTUS forces the state to disqualify these legal ballots, handing the election to Trump.
3-4 justices were explicitly on board with this plan.
3-4 justices were explicitly on board with this plan.
Now turn to North Carolina.
A similar situation: The state election board extended the mail ballot deadline, with approval from state courts.
Three justices tried to block that move and force the state to disqualify late-arriving *legal ballots.* https://slate.com/news-and-politics/2020/10/north-carolina-pennsylvania-neil-gorsuch-supreme-court-ballots.html?via=recirc_recent
A similar situation: The state election board extended the mail ballot deadline, with approval from state courts.
Three justices tried to block that move and force the state to disqualify late-arriving *legal ballots.* https://slate.com/news-and-politics/2020/10/north-carolina-pennsylvania-neil-gorsuch-supreme-court-ballots.html?via=recirc_recent
Three conservative judges on the 4th Circuit urged SCOTUS to nullify legal ballots in North Carolina on the basis of a novel theory that was even too crazy for the 4th Circuit's very conservative Trump appointees.
But it got three votes at SCOTUS. https://slate.com/news-and-politics/2020/10/4th-circuit-voting-rights-north-carolina.html
But it got three votes at SCOTUS. https://slate.com/news-and-politics/2020/10/4th-circuit-voting-rights-north-carolina.html
So here's scenario #2: The 2020 election comes down to NC. The NC election comes down to late-arriving ballots. SCOTUS forces the state to disqualify these legal ballots, handing the election to Trump.
At least three justices were ready and willing to carry out this plan.
At least three justices were ready and willing to carry out this plan.
Finally, turn to Minnesota.
Again, a similar situation: The secretary of state extended the mail ballot deadline, with approval from state courts.
Two judges on the 8th Circuit *adopt Kavanaugh's theory* and claim this extension is unconstitutional. https://slate.com/news-and-politics/2020/10/minnesota-judges-barrett-absentee-ballots.html
Again, a similar situation: The secretary of state extended the mail ballot deadline, with approval from state courts.
Two judges on the 8th Circuit *adopt Kavanaugh's theory* and claim this extension is unconstitutional. https://slate.com/news-and-politics/2020/10/minnesota-judges-barrett-absentee-ballots.html
MN officials are so terrified of SCOTUS at this point that they don't even appeal the 8th Circuit's insane decision, even though the election is in FIVE DAYS. Instead, the tell voters that the ballot deadline they've been given for months is now wrong. https://twitter.com/whstancil/status/1321965827617296384
So here's scenario #3: The 2020 election comes down to MN. The MN election comes down to late-arriving ballots. SCOTUS forces the state to disqualify these legal ballots, handing the election to Trump.
Again: We know 3-4 justices would have gone along with this plan.
Again: We know 3-4 justices would have gone along with this plan.
I can't speak for others, but I tried to make it clear before Nov. 3 that (1) these scenarios were possible though not probable; (2) four SCOTUS justices telegraphed their intent to toss out these ballots; and (3) this was the only way SCOTUS could throw the race for Trump.
Within days of the election, it became clear that the outcome of no swing state race would depend on late-arriving ballots; they became irrelevant. At that point, the odds of SCOTUS stealing the election dropped down to zero—as I, and many others, explained at the time.
Ever since, I have repeatedly and emphatically stated that Trump's absurd post-election litigation would fail to change the outcome of the election. So has every Supreme Court commentator whom I follow, including progressives who deeply fear SCOTUS. https://twitter.com/mjs_DC/status/1325976989258440704
To circle back: With all due respect to Nate, the Supreme Court's post-election decisions are not a "surprise," and they do not reveal any progressive "blind spot." Left-leaning court-watchers have consistently said these cases would fail, because they are laughably frivolous.
But the failure of Trump's post-election litigation does not mean that Trump never had a chance of stealing the election through the courts. It simply reflects the fact that the outcome did not come down to late-arriving ballots in PA, NC, or MN—and it might have! We got lucky!
Moreover, liberal court-watchers aren't laughing at the frivolity of Trump's post-election lawsuits—not because we think they'll prevail, but because they signal serious trouble ahead for our democracy. https://slate.com/news-and-politics/2020/12/trump-doomed-supreme-court-filing-civil-war.html
In short: There was a plausible scenario in which SCOTUS could have thrown the election to Trump. After Nov. 3, it became clear that this scenario would not occur—in part because state officials urged everybody to mail in their ballots early. Since then, Trump has been doomed.
Progressive court-watchers have consistently said that Trump's post-election litigation would fail. Its failure does not prove that we were wrong, before Nov. 3, to worry about SCOTUS handing the election to Trump by nullifying late-arriving ballots.
The end! Thanks for reading.
The end! Thanks for reading.
