R.I.P., R.B.G.
Supreme Court Justice Ruth Bader Ginsburg now rests in peace.
For the rest of us, there will be no rest and very little peace for the next few months -- of that much we can be certain. Because while the phrase is occasionally overused, it is no hyperbole to say that Ginsburg's death has now left America in what can only be called a true constitutional crisis.
There are all sorts of ways this could play out, ranging from the reasonable to the apocalyptic. At this point, the paths to reasonableness seem few and narrow, while the paths to chaos are much more wide and numerous. It's not even overstating the case all that much to say that we have never been closer to a second civil war in this country.
Consider, if you will, that we are six weeks away from a presidential election, and the sitting president is already calling into question -- in every way he knows how -- the legitimacy of the vote itself. That's unprecedented. Trump is also egging on his followers to commit violence against his political opponents -- which could even mean violent skirmishes at voting locations across the country. Consider also that even if the Supreme Court remains at only eight sitting justices, ties go to whatever the lower courts ruled -- and the Supreme Court gets to pick and choose which cases it takes up. If Trump's nominee is seated before the election, then the court will have a 6-3 conservative majority (or, even being charitable, a 5-1-3 split, with John Roberts as a now-meaningless swing vote).
So what's to stop Trump from declaring himself the winner on the night of the election, then launching dozens of lawsuits which end up in the court he just stacked in his favor? What happens if Joe Biden wins the popular vote by a margin of 10 million votes (and the Electoral College by a similarly-wide margin), only to see his victory overturned by the highest court in the land? And what would happen immediately afterwards, out in the streets? At that point, the prospect of states like California and New York seceding from the Union doesn't seem so farfetched, does it?
Even if this nightmarish scenario does not come to pass, consider what a 6-3 court will mean just in the next year alone: Obamacare overturned. Voting rights gutted even further than they have been. Minority rights likewise gutted. Employee rights eviscerated. Roe v. Wade probably won't be overturned immediately (that will likely have to wait for a better test case to come along), but states will be given the green light to enact any abortion restrictions they please, no matter how onerous or unreasonable. Abortion will thus effectively cease to be a right in the reddest of states. The Census rules changing, so that only citizens and/or legal residents are considered for the decennial congressional reapportionment. Any or all of that could easily happen even if Joe Biden is president. And that's just what could happen in the next year -- without even contemplating what cases the court will choose to decide upon in subsequent years.
That's a pretty pessimistic outlook, I have to admit. But it is not an unreasonable one to consider, at this point. So is there any room at all for optimism? Well, a little, perhaps -- but not much.
The first thing to focus on is the possibility that four Senate Republicans will do the right thing. This is a pretty thin reed to grasp (see: the past two decades), but it could actually happen. We're already at two, and there are a number of other GOP senators who have not committed themselves one way or the other. So picking up two more isn't totally out of the realm of the possible at this point. Perhaps Mitt Romney and one of the Republicans facing a very tough re-election battle will join Lisa Murkowski and Susan Collins in sticking to the precedent the Republicans set in 2016: "We're too close to the election, so let's let the voters have a say." Remember all the sanctimonious high-road-ism the GOP spouted when they denied Merrick Garland's consideration? Remember all those statements of sacred principle, which most Republicans are now completely ignoring in the most flaming bout of mass hypocrisy ever seen on Capitol Hill? Maybe there are two more Republicans left with some shred of self-respect or conscience who will derail this train before it even leaves the station. If Mitch McConnell doesn't have 50 votes, then he can hold all the hearings and floor votes he wants, but there will be no confirmation.
This, obviously, would be the best of all possible outcomes. Then the voters would indeed get to have a say. If Biden wins in a landslide and the Democrats take back the Senate, then he could appoint R.B.G.'s replacement and the court's ideological balance would remain where it was before her untimely death. Things would return to some sort of normalcy. This assumes the 5-3 court doesn't overturn the election result, of course.
While we all wait for Romney and the others to make up their minds, there is one important voice in all of this we have not heard from yet. Chief Justice John Roberts has not weighed in on what should happen next. He may not do so -- Supreme Court justices rarely speak out on political issues, after all. But this is a unique case, because the legitimacy of the Supreme Court itself is what is at stake. And that court will forever be known as "the Roberts Court" -- a fact of which he is fully aware. Roberts knows full well that if half of America considers two of the justices on the court to be illegitimate, then the entire court (and all their decisions) will also be considered illegitimate. Roberts must also be aware of another possible outcome -- Democrats "packing the court" after January, by raising the number of people on it. That would also cause roughly half the country (the other half) to consider the court illegitimate. This is a lose-lose situation for Roberts, plainly. Which is why he might just be motivated to weigh in before any of these things actually comes to pass, especially if his opinion could influence the outcome and avoid the lose-lose situation entirely.
Even if Biden wins and then resists the urge to pack the court, Roberts will face a different sort of dilemma if Trump's nominee is confirmed. Up until now, he has acted as the swing vote -- a valuable check on the worst impulses of the conservatives. Obamacare survived because Roberts voted for it, to give just one prominent example. But in a 6-3 court, Roberts will no longer have this power. The other five conservatives will be able to do anything they please -- and they likely will. This will lead to the situation Franklin Delano Roosevelt faced (the last time court-packing was an issue) -- the country moving leftwards in a big way while the court moves sharply rightwards. This will doubtlessly lead to some decisions that the judgment of history will deem to be both horrific and wildly out of step with the public's prevailing opinion. There won't be any Brown v. Board of Education decisions to celebrate, but there may be a whole lot of Dredd Scott decisions that will later have to be overturned by future Supreme Courts. This will mean the Roberts court will go down in history as fighting against the moral arc of justice.
Roberts, of course, is aware of all of this. So does he really want his namesake court to be held up as a future "worst case" example to first-year law students? This possible legacy might be enough of a motivation for him to publicly comment on the situation the country now faces. And while Roberts has zero actual say in the outcome (which is solely the province of the president and Senate, constitutionally), his opinion would certainly carry a whole lot of weight in the debate that happens before the confirmation vote takes place.
There is one other thin reed of optimism to cling to in all of this. If Joe Biden is elected president (and the Supreme Court doesn't overturn the election) and if the Democrats do take back the Senate, then Chuck Schumer has already stated that "nothing will be off the table" if Trump's nominee is jammed through before January. He has not specified exactly what this means, but there are a few prominent options worth considering.
The biggest option is the most obvious one -- Schumer could drop the final remaining nuke and overturn the Senate filibuster rule for legislation. If Democrats kill the filibuster once and for all, this would change Washington overnight. The minority party in the Senate would have no more power than the minority party currently has in the House of Representatives (which is to say: "none"). Whichever party held both houses of Congress and the White House could pretty much do whatever they pleased without having to consider the minority party's wishes in the slightest. This would break the logjam that the Senate has now become in the biggest way imaginable. Things would actually get done in Congress once again -- which would be an enormous change from the absolute gridlock which has been strangling Capitol Hill for at least the past decade or so.
It would serve to open up many other possibilities on that table Schumer spoke of, as well. One that hasn't gotten much attention yet is that Schumer could decide that the time has now come to allow Washington, D.C. to become a state. This would add two reliably Democratic senators to join the chamber. He could do the same for Puerto Rico, although this addition wouldn't be as much of a Democratic lock as adding D.C. would be (Republicans aren't as much of an endangered species on the island as they are in the District of Columbia). We could have 52 states and 104 senators by this time next year, which would obviously change the political calculations considerably. If all four new senators were Democrats, this would increase Schumer's majority in a significant way. Let's say Schumer wins a majority of 52 seats in November. This means he will functionally have a two-seat advantage -- he can lose two votes from his party and still pass legislation (with a Democratic vice-president breaking the tie). If he added four Democrats to the chamber, it would mean a majority of 56 to Republicans' 48. In this scenario, 52 votes would mean a tie, so Schumer would have a bigger margin of four votes that he could lose, instead of two. That's a big difference.
Of course, we'd have to redesign the U.S. flag, but that's a minor consideration. Adding four senators with such a heavy Democratic tilt would also make it that much harder for the Republicans to win control of the chamber back, and this would be a permanent change -- no future Republican Senate could kick D.C. and Puerto Rico out of the Union.
The biggest option Schumer would have (assuming the death of the filibuster) would be to "pack the court." Would Democrats play this kind of hardball? That's an open question -- it didn't work for F.D.R., after all, even with a Democratic Senate. And Democrats are not generally known for their prowess at the game of hardball. Would a majority of Senate Democrats go along with such a radical scheme now? There's no guarantee that they would. And Joe Biden has previously said he's against the idea. However, R.B.G.'s death has shaken the party to its core -- so the base voters may indeed demand some hardball action. If there was a groundswell of public opinion in favor of radical moves, it might prove to be very hard for Democratic officeholders to resist.
But if Schumer is smart, he may decide to only slightly pack the court. Take it by the numbers -- if the court in January is 5-1-3, then achieving liberal dominance would require adding at least four more justices (which would leave it at 5-1-7). That's a lot, however. It would leave the court with 13 justices, which many would consider to be unlucky. And it would be seen as the most naked of power grabs possible.
So perhaps only adding three might be enough. This would give us a 5-1-6 court, where ties would be possible. Just as there is no constitutional requirement for there to be nine justices, there is also no constitutional requirement that the court have an odd number of them (indeed, the court has had even numbers before, albeit not in a very long time). This would leave Roberts as the swing vote, but it would also lead to a whole lot of ties, assumably.
The smartest path forward for Democrats (if Trump's pick is confirmed, Biden wins the election, and Chuck Schumer holds the Senate) would be to act radically but with restraint (if that isn't too much of an oxymoron). Adding just two more justices would not achieve liberal dominance, but it would be a lot easier to make the case of fairness to the public for such a move. Adding only two more members would essentially preserve the ideological status quo ante, after all -- the court would be perfectly balanced as a 5-1-5 court. Just as it was before (when it was 4-1-4), Roberts would be the swing vote in all contentious cases. The conservatives would still hold an edge in power, since Roberts is a pretty conservative justice in most cases. Schumer and the Democrats could then make the case to the public that "this is not a power grab, because we will leave the court with a conservative advantage, just as it was before." They could also very easily make the case that two judicial appointments were essentially stolen from the liberals, and that adding two more for Biden to pick was nothing short of rectifying this cheating.
Currently, Republicans have been reduced to making a realpolitik argument: "We can do this, nothing in the Constitution says we can't, so therefore we are going to do it, no matter how unfair it may be." Democrats could throw this argument right back in their faces: "Nothing in the Constitution says we can't add justices, therefore that's exactly what we are going to do, period. Deal with it."
Politically, this would be the wildest of wild rides, of course. But we've already boarded that rollercoaster, folks. The only question that remains is whether the rollercoaster will take some sharp turns to the left to counter all the veering off to the right, really.
Which brings us right back to where we began. Ruth Bader Ginsburg may be resting in peace, but the rest of us are going to be in for a political battle unlike any seen in most of our lifetimes. This much is already guaranteed, no matter what the outcome turns out to be. So buckle up and hold tight, because this rollercoaster is now leaving the station.
-- Chris Weigant
Follow Chris on Twitter: @ChrisWeigant
Program Note:
In response to an earlier issue, I'm not sure whether I've ever done so previously (I'd have to check -- maybe during a convention or Netroots?), but I did indeed strongly consider posting a Saturday column this weekend.
In the end, I chose not to, and I'm kind of glad I waited. I was able to consider some scenarios that hadn't immediately suggested themselves, and was able to work through some implications that would have been left out.
In any case, like I say in the article, buckle up everyone...
-CW
I'm glad you waited, too. Nice piece!
There is one other thin reed of optimism to cling to in all of this. If Joe Biden is elected president (and the Supreme Court doesn't overturn the election) ...
It sounds amazing to say, if the SC doesn't overturn a Biden election. Not something I'd ever imagined possible. But, I guess that strange thing in America has already happened.
That would be just Biden's luck though - thirty plus years to get the nomination after his first try and then he wins the election only to have it overturned by the Supreme Court. Sigh.
That's actually kind of hilarious ...
Again I have to ask about Joe Manchin. His statement today is:
“For the sake of the integrity of our courts and legal system, I do not believe the U.S. Senate should vote on a U.S. Supreme Court nominee before the November 3rd election. For Mitch McConnell and my Republican colleagues to rush through this process after refusing to even meet with Judge Merrick Garland in 2016 is hypocrisy in its highest form. The U.S. Supreme Court is the highest court in the land and it is simply irresponsible to rush the adequate and proper vetting required of any new candidate for the bench. Pursuing an overtly partisan approach to confirming a Supreme Court Justice will only deepen the political tribalism we are witnessing across this country. I implore every Senator, regardless of party, to honor their responsibility to act in a manner that brings this country together rather than feed a cycle of endless political division.”
W. Va. Senator Joe Manchin: Senate Should Not Vote On Supreme Court Nominee Before November Election
Where does that leave us after the election?
Anyone who trusts Susan Collins is a fool.
He could do the same for Puerto Rico
Do Puerto Ricans get a say in that decision? It's not clear to me that they want to be a state.
I don't believe that Roberts is a swing voter. He just plays a long game and the end game has arrived.
Why is Canada sending assassins? Do we need to make them pay for another big beautiful wall?
Various people tried to get Ginsburg to retire her already cancer-riddled body during Obama's 2nd term, just to prevent the current scenario from coming to pass. She gambled and lost.
You didn't mention the best court-packing scheme I've read yet: Congress makes all 200-odd Appeals Court judges members of the Supreme Court ex officio, with randomly selected panels of nine of them assigned to hear and judge the various cases.
This, as silly as it sounds, makes an end-run around the problem of the Dems increasing the Court to 11 or 13 or 15 this cycle around, to be combatted by the next Republican president and Senate enlarging it to 19 or 21, etc.
...in the most flaming bout of mass hypocrisy ever seen on Capitol Hill?
C'mon CW. Never say ever, this is Sausage Making 101. It can always get worse.
It's kinda like saying "Republican Majority for a Generation" means maybe two years.
It looks like McConnell has the votes. Death cults are pretty unshakeable.
@jfc,
puerto ricans held a vote on the statehood topic recently, and have another vote scheduled this year. right now statehood holds a pretty strong plurality, if not an outright majority.
JL
It's 1:35 AM in Louisville and the choppers are buzzing. The police have declared a state of emergency. The attorney general (McConnell's puppet) is expected to make some sort of announcement regarding the Brionna Taylor case some time this week and now McConnell has initiated this supreme court insanity. What could go wrong?
Don Harris [5] -
I resisted the urge in this article to delve into the various ways SCOTUS could be reformed, although I may devote a later article to the subject.
The real key: which reforms could pass as a law, and which would require an actual amendment? And -- with SCOTUS being the deciding factor -- how much confidence does anyone have in such hair-splitting? If Congress passed a law reforming the court in any way, would SCOTUS abide by it or try to overturn it as a constitutional overreach?
I'm still percolating all these questions, which is why I didn't really address it in this article...
MyVoice [6] -
Manchin's statement is a lot more forceful than I would have given him credit, I have to admit.
I've heard a new Dem slogan of late: "No confirmation before inauguration!" Seems to sum it up nicely...
Again, the pre- or post-election Senate vote question is another one I blew off for this article, but may indeed devote a later article to, because it may prove to become vitally important.
JFC [7] -
True 'dat. Just ask anyone in Maine...
[8] -
They've held several flawed referenda, but they'd have to hold a new (and clean) one to decide.
JFC [10] -
I'm just glad we've heard recently from LizM, if you know what I mean -- female Canuck? Arrested?
Heh.
Second reaction (see "South Park" movie): Blame Canada!
C.R. Stucki [11] -
Yeah, I've said that myself (and recently), but then again, would Mitch have let both of them get away with it, or would it have ended up in the same black hole as Merrick Garland?
John M. from Ct [12] -
See my answer to DonH.
-CW
3] Elizabeth Miller wrote:
"It sounds amazing to say, if the SC doesn't overturn a Biden election. Not something I'd ever imagined possible. But, I guess that strange thing in America has already happened."
My TWO questions would be:
1) What possible grounds would the court have to actually overturn the results of an election? (Unlike Bush vs Gore, where a recount was simply halted in a razor close election.)
2) The court, even conservatives, would be extremely loathe to intervene so heavily in a partisan political question, knowing full well that doing so would really tear the country apart politically.
The US experiment in self government is failing. The U.S. Constitution may not be worth the parchment it's written on. Every US state has its own written constitution and its own legal code. One, two, three Balkanize.
The Southern States should love this...and they already have a flag! Big states will not be grossly under represented in Federal Government as they are today. Yes, there will be minor-esque problems. Who get's what part of the military? Especially those pesky nukes, be they in silos, SSBNs or aircraft....but if Israel can have a working Nuke Triad, any state should be able to handle this. Even Rhode Island. Industry, Medicine, Education - same deal.
You don't keep an old clunker forever....unless you are Leno or a museum. You trade it in for something newer - with better performance that spends more time on the road than in the shop. OK, some of the smaller states without a coastline may end up walking, but that's just because Freedom.
Chris,
You've written before on removing the filibuster and the wild legislative swings this might cause, with one party enacting whatever legislation they please and the next congress repealing it all. All probably true, but at least the voters would have a more direct hand on the tiller of state. Currently, it mainly doesn't matter too much who gets in: nothing's going to happen. This is a sure path to voter apathy. If voters feel that if they prevail at the election then they'll get the policies they want enacted, they be more interested in voting.
Don't forget, politics is a game of advantage within a set of rules. If the rules allow for wild swings, then we're probably going to have a new crop of politicians promising coalitions and stability that'll give voters the ability to choose that path.
So, a wild ride for a few years, but ultimately more power to the people.
Alin
John,
The court, even conservatives, would be extremely loathe to intervene so heavily in a partisan political question, knowing full well that doing so would really tear the country apart politically.
Setting overturning elections aside for the moment - which I was talking about with tongue in cheek, above - this assertion that the court would be loathe to intervene in a partisan political question seems odd as this is exactly what the court is asked to do on a regular basis.
I'm just glad we've heard recently from LizM, if you know what I mean -- female Canuck? Arrested?
HA!
Ahem.
[19] TheStig wrote:
"The US experiment in self government is failing. The U.S. Constitution may not be worth the parchment it's written on. Every US state has its own written constitution and its own legal code. One, two, three Balkanize."
I hardly think so, at least not yet. We've been thru worse before and survived. The Civil War, Jim Crow, Desegregation, the Vietnam War protests, were all more serious threats to united self governance.
John, your democratic institutions haven't been threatened the way they are being now for a very, very long time and, in any event, on a much broader and deeper scale.
I think the reelection of Trump will permanently tip the scale in the decidedly wrong direction.
CW: So what's to stop Trump from declaring himself the winner on the night of the election, then launching dozens of lawsuits which end up in the court he just stacked in his favor?
What's to stop Trump from declaring himself the winner tonight? Nothing, and it would be just as much "hot air" as if he declared himself the winner on election night because the states choose their own representatives and manner of elections, and as we all know (or should), each state has their own rules for their own elections where one set of rules does not fit all the states. Trump has already launched multiple dozens of lawsuits in a plethora of states, and he's losing most of them because the states make the rules for their own elections according to the United States Constitution... that thing that the POTUS and the SCOTUS swear to govern by.
CW: This assumes the 5-3 court doesn't overturn the election result, of course.
The "election result" isn't a single outcome. Do you think the Supreme Court is going to overrule the Constitution and just "overturn" the results of voting in the State of California? Maybe the results of the State of New York? If Trump doesn't like the results in Florida, you think the SCOTUS will just toss them?
CW: This is a lose-lose situation for Roberts, plainly. Which is why he might just be motivated to weigh in before any of these things actually comes to pass, especially if his opinion could influence the outcome and avoid the lose-lose situation entirely.
I don't see how it's a lose-lose for Roberts, and why should he weigh in? The Constitution is clear on this.
McConnell and the GOP have decided that the only Party who can fill a SCOTUS seat is the one who holds the power in the Senate. So when Democrats regain the Senate, they can make the rules.
Vote.
Death Harris
5
You know what would solve the problem- ending lifetime appointments.
Why doesn't it surprise me that Death Harris has a "solution" that would be unconstitutional unless the United States Constitution was amended?
The excuse for lifetime terms is pure nonsense.
The "excuse for lifetime terms" is the United States Constitution, and if you can see your way fit to claiming that one of the most awesome ideas ever promulgated on paper is "pure nonsense," then maybe you're not too ignorant to wrap your head around the fact that the majority of Weigantia feels the exact same way about your shitty "idea."
So to recap: If the United States Constitution is "pure nonsense," then that definitely means your fantastical flaming failure of an idea is bullshit on a stick inside a brown paper bag set on fire on the front porch of every residence in America.
Maybe you should have taken another day or two on this and you might have gotten around to actually thinking about solving the problem instead of tinkering with a flawed system.
Maybe you should go fix your effed up piece of flaming shit website. :)
John From Censornati
7
Anyone who trusts Susan Collins is a fool.
You mean the Susan Collins who pledged over two decades ago to serve no more than two terms... that Susan Collins?
https://www.youtube.com/watch?v=3_0N9DKtAH8
That's the one.
TS
Did you get your ballot yet? We want voting details. :)
MtnCaddy
As you wish:
Bloomberg pays fines for 32,000 felons in Florida so they can vote
"The right to vote is fundamental to our democracy and no American should be denied that right," a Bloomberg spokesperson told the news outlet. "Working together with the Florida Rights Restoration Coalition, we are determined to end disenfranchisement and the discrimination that has always driven it."
Florida passed a law in 2018 reinstating voting rights for felons that dictated they could register only if they pay all fines, fees and restitution — sometimes totaling more than $1,000 — owed to the government.
The 11th U.S. Circuit Court of Appeals, which covers Florida, last week ruled to uphold the law.
MtnCaddy
Meant to also report that the $16 million raised to pay off the fines is in addition to the $100 million Bloomberg is investing in Florida to support Joe Biden.
JohnM -
Trump is a master at using the courts to get his own way, or at the very least delaying things forever. He'll manufacture sixteen different reasons, in sixteen different lawsuits. SCOTUS only has to agree with one of them. That's how I could see it playing out. Bush v. Gore was such naked partisanship that SCOTUS even said "don't use this as a precedent, ever" right there in the text. They knew how bad a decision it was, but they went right ahead and made it anyway.
Like in B v. G, the timetable is short. The Electoral College date is hard-wired in the Constitution, as is Jan 20. So things have to happen very fast. Trump would also use this leverage, I would guess.
It's depressing to contemplate, but it's no longer an impossibility, if you know what I mean.
Alin [20] -
More and more I find myself on the side of jettisoning the filibuster once and for all. My reasoning is similar to yours, but I have to admit I hadn't thought about the positive effect on voters.
Sure, we'd swing wildly back and forth between the liberal and conservative agenda for a while, but at least stuff would get done. Good things and bad things would get done, but after a time, most people would be able to see what worked and what didn't. Therefore the push to overturn stuff might peter out for some issues, and some solid progress would be made.
Gay marriage is one big example. No Republican runs today on overturning gay marriage. The sky was going to fall if it happened, then it did and the sky didn't, so now they know that it would be almost impossible for them to resurrect the "Defense of Marriage Act" idea. Even with SCOTUS 6-3, I doubt they'd overturn it either. Marijuana legalization is another one -- the sky is still firmly in place in all the states which have done so, and it is becoming less and less controversial each year.
So yes, there will be wild oscillations, perhaps, but when you look at the long term, perhaps the good ideas from both parties (and the GOP does occasionally have a few) would get enacted and stand the test of time.
Maybe I'm just a wild-eyed optimist, but that's where I am now. And, interestingly, I think Schumer might just be angry enough to do it if he gains control of the Senate this year.
Kick [25] -
I need to study up on the one election that happened in a way I could see 2020 going. It was just after the Civil War, and a few states (2?) certified two separate sets of electors. With one set, one guy won, but with the other set, the other guy won. They convened a select commission (SCOTUS was involved, partially, as I remember) and handed the election to one of the parties, with some compromises (on killing Reconstruction, I believe) to the other side.
That scenario -- uncertainty as to who is an official elector -- could play out again, which is why I really need to read up on it. Um, Tilden? I think Tilden was the guy who lost... gotta look it up...
The very complexity of the system means there are plenty of places to launch a legal attack against it. Which votes are counted, when to stop counting, which votes are approved and rejected, who is in power in the state government (which could change with the election results), who is certified as an elector, faithless electors -- there are all kinds of things that have to happen for a president to actually officially win. Most of the time, nobody pays any attention to this machinery at all. This time might be different, with the ever-litiginous Trump....
-CW
That's mighty nice of Mr. Bloomberg.
Chris Weigant
34
I need to study up on the one election that happened in a way I could see 2020 going. It was just after the Civil War, and a few states (2?) certified two separate sets of electors. With one set, one guy won, but with the other set, the other guy won.
Yes, sir... 1876: Rutherford B. Hayes (R) vs. Samuel J. Tilden (D), wherein Democrats ran on a platform that included dealing with the tyrannical carpetbaggers that plagued the South. Tilden was the Governor of New York who was famous for sending Boss Tweed to prison.
This election led to the Compromise of 1877 where the Democrats agreed to concede to Hayes in return for the end of Reconstruction and withdrawal of federal troops from the South and a transcontinental railroad of the South they promised but never delivered. There were 20 electoral votes where each Party reported that their candidate had won the votes of multiple Southern states. Members of the SCOTUS were indeed part of a commission wherein a compromise was reached.
That scenario -- uncertainty as to who is an official elector -- could play out again, which is why I really need to read up on it. Um, Tilden? I think Tilden was the guy who lost... gotta look it up...
Yes, it was Tilden. Not surprisingly, there was voter intimidation in the South involved. All this electoral shenanigans let to the Electoral Count Act.
Fast forward to today where I cannot fathom how a scenario like 1876 could happen again considering the fact that states count the valid legally cast ballots whether the candidates like the outcome of the count or not.
The very complexity of the system means there are plenty of places to launch a legal attack against it. Which votes are counted, when to stop counting, which votes are approved and rejected, who is in power in the state government (which could change with the election results), who is certified as an elector, faithless electors -- there are all kinds of things that have to happen for a president to actually officially win. Most of the time, nobody pays any attention to this machinery at all. This time might be different, with the ever-litiginous Trump....
Yes, Trump will attempt to cheat with the help of the same multiple nations who helped him before, but I cannot fathom how he can successfully shut down the counting of votes wherein states hold their own elections with their own rules as outlined in the Constitution. How does one go about overturning the multiple separate elections that would have to be invalidated in order for Trump to win the election? Seems highly unlikely.
Trump can declare himself the winner all he wants and whenever he wants; it won't stop the states from counting the votes. The results of a state election are certified according to rules of each state after each state has received the data from 100% percent of their voting precincts. Full stop.
Can you imagine Trump declaring himself the winner of New York State because he was ahead with 30% of precincts reporting at 12:00 p.m. EST? It's never worked that way, and the rules aren't going to miraculously change to meet the needs of Benedict Donald Trump and the GOP. If Biden wins Florida on election night, Trump has no path to the nomination. He can whine all he wants about it.
There are no precincts in America that aren't going to count their legally cast ballots as determined by law and report them, and I cannot fathom the Supreme Court intervening in order to invalidate vote counting. Stopping a vote recount? Sure... Bush v. Gore... but stopping valid vote counting? Not bloody likely.
MtnCaddy
35
That's mighty nice of Mr. Bloomberg.
Yes, sir. There's more than one way to stop the disenfranchisement of voters. Suck it, Florida GOP. :)
Kick [36] -
Normally, I would agree with everything you say. However, (1) with Trump, all things are possible, and (2) Bush v. Gore, which I still can't quite believe happened.
Once bitten, twice shy, in other words. And with Trump, very shy indeed. Remember: Trump uses the courts as a weapon -- always has, always will. And it doesn't matter what the lower courts throw out (while laughing at the legal "logic"), SCOTUS will be the deciders. And with a 6-3 SCOTUS, anything is possible....
-CW
Anything can happen because there is no shame, not even a scintilla of it. :(
Something to think about from CNN legal analyst Jeffrey Toobin:
“Let me just give you one example of the issues that are out there,” said Toobin. “Most people don’t know this, but under the Constitution, a state legislature can decide to award the electoral votes to the candidate of its choice, regardless of the voters. So if you have contested elections in North Carolina, in Wisconsin, states with active and very conservative Republican majorities, they can say, you know, this election is too chaotic, we are awarding our electoral votes to Donald Trump. That is a possibility that exists. And people need to start focusing on it now, because it is a real possibility.”
Even if Trump does get a new justice on the court prior to the election, don’t you think that person will have to recuse themselves from any vote regarding the election? I cannot imagine Roberts allowing a person who was placed on the court days prior to the election to play any role in deciding it!
There is clear precedent that recusal is advisable when the judge is appointed at a time when issues are pending against the person who nominated him to avoid the appearance of a conflict. This is what then-Chief Justice William H. Rehnquist did in the seminal Watergate case, U.S. v. Nixon. It really boggles the mind that this is something that we have to worry about in our country!
Chris Weigant
38
Normally, I would agree with everything you say.
And you would be correct. ;)
However, (1) with Trump, all things are possible, and (2) Bush v. Gore, which I still can't quite believe happened.
As for (2), I hear you... but remember that Bush v. Gore was stopping a recount of votes and not an actual first count where candidate Texas dipshit declared himself the winner before the votes were counted.
As for (1), "all things"? Nah. The SCOTUS has denied Trump many things:
You want more "things"? Well, okay.
Trump has the worst record at the Supreme Court of any modern president
Interesting reading for those wishing to see Trump's record with the SCOTUS. Yes, I realize that was with a 5-4 SCOTUS, but many of the decisions were lopsided. Having said that, I do realize there are two of the Supreme Court justices who would allow Trump to bend them over on national television. I won't name them. There are those who would insist Trump wins all the time in the SCOTUS, and they would be bigly wrong.
Trump running around the country and pretty much broadcasting his intentions does not help him in the SCOTUS. His inept rambling and tweeting is killing whatever argument he'd potentially have in the SCOTUS. Seriously, Trump has a bad record in the SCOTUS... one of the worst, and much of that is due to his own actions. He's installed his own man at the USPS to sabotage the mail and then attempted to use the courts to invalidate the ballots before they're even cast.
Once bitten, twice shy, in other words. And with Trump, very shy indeed.
Forewarned is forearmed, and I hope everyone feels the way you do and VOTES!
Remember: Trump uses the courts as a weapon -- always has, always will.
Remember: Trump is a pathological liar and has perjured himself in multiple depositions/jurisdictions. Trump loses a lot in court:
Roundup: Trump-Era Agency Policy in the Courts
And it doesn't matter what the lower courts throw out (while laughing at the legal "logic"), SCOTUS will be the deciders. And with a 6-3 SCOTUS, anything is possible....
Anything? History says "nope," but I do understand where you're coming from. If Trump wins when all the votes are counted, no problem. If Trump actually loses when all the votes are counted or the SCOTUS allows Trump to overturn multiple state elections that Trump lost, they will deserve their fate when the King they've created does away with their precious SCOTUS. Our democracy will then be gone, and you'll understand why I wasn't exactly kidding when I referred to the con artist jackass as "Benedict Donald" and the biggest threat to America.
Canada's entertainment venues were lit up in red tonignt in support of our live entertainment community. Let's all do it all and end this pandemic!!!
https://www.facebook.com/hashtag/lightuplive?__eep__=6&source=feed_text&epa=HASHTAG&__xts__0=68.ARASgC0MsaZIIzYBHdK5ewWxrGqAClzCn-ML-jEfjL0749h4wrr3k9RvtufXY0qI5MSF7yia1lePIK30O1axkT1zKhqpb2vSD10hd3oQJFQIx4wesH7_NqQeSDbocBv_YzmlIu3R3sIVfdzzwFNxaGL_2OAsfDDevbaZsLnrOHr5LCjBeO0RceoAGUFEVCRb0AjSVqXnjOZbIakBzdDcS4SuOyvzHtYXgOA-afZfQemsYDttgtPACITEY-6pSIMCguqkgghnR1xgQ7rLEFSB1EO5PtQs51cGjjU9KAUx40t0XS_o3RuMbLRs_1prvazAXpOQCOkdylhSxBgxgfBj6wVqHCih8Iwb1BQ0Ds6M4gaYJAOu&__tn__=*NK-R
Yikes.
Here is a better link:
https://lightuplive.ca/
CW
Gay marriage is one big example. No Republican runs today on overturning gay marriage. The sky was going to fall if it happened, then it did and the sky didn't, so now they know that it would be almost impossible for them to resurrect the "Defense of Marriage Act" idea. Even with SCOTUS 6-3, I doubt they'd overturn it either.
I agree that our right to marry might be safe, but there are far more ways for Conservatives to strip rights away from the LGBQT community. There are still states where we can get married on Saturday, post our wedding photos online on Sunday, and get fired from our jobs as a result on Monday.
I lost my job as a 911 call receiver in part because I demanded an investigation of my homophobic supervisor after she ordered me to falsify the classification of a 911 call simply because the suspect was black. Devon was forced to resign from the police department he was working at because he was defending me. This all happened in King County, WA — the county’s largest city being Seattle — one of the most liberal counties in this country! Washington had a law making it illegal to fire someone based on their sexual orientation, but that requires extremely specific declarations of the intent to discriminate by the employer to enforce. If they create reasons to fire you that do not mention your sexual orientation, the state agencies that are tasked to investigate these matters won’t even consider your case.
Despite my experience, I cannot imagine risking our livelihoods by moving to a state that does not offer any protections against discrimination based on our sexual orientation. I miss Georgia more than I ever thought I would, but I cannot imagine living in constant fear that would come with moving back home.
Alin [20]
Spot on! Well said!
Kick-31
My request was processed in early Sept. Ballot mailings will START Oct 6. There are currently 96,000 absentee ballot requests in my county. The online tracker is supposed to notify me when my ballot is mailed. i'll keep you posted.
TheStig
48
Oh, boy! Democracy at work. :)