A defeat of Donald Trump at the ballot box will not undo the growing mistrust of the Supreme Court and concerns about its commitment to protecting fundamental civil liberties, including voting rights.
In fact, the president’s social media language has been so patently false in recent days that several other of Trump’s tweets were flagged by Twitter—since “some or all of the content shared” was “disputed and might be misleading about an election or other civic process.” Some of those flagged tweets claimed unconfirmed or simply false victories or that election officials were “working hard” to undermine the vote counts.
In one such incendiary tweet, Donald Trump erroneously claimed, “They are working hard to make up 500,000 vote advantage in Pennsylvania disappear—ASAP. Likewise, Michigan and others!”
President Trump’s tweets reflect cynicism, stoke confusion and spread misinformation about the legitimacy of the election. For example, President Trump claimed victory on the night of the election—even as ballots remained to be counted in Nevada, Arizona, Michigan, Wisconsin, Georgia and Pennsylvania.
On one hand, the premature claim offered a poor lesson in understanding the voting process. Historically, votes continue to be tallied days after an election, especially as properly-filed absentee ballots postmarked by Election Day can arrive days after an election. Think of our military service members voting from overseas or individuals with disabilities who have a constitutional right to cast their votes, but cannot physically make it to polling locations.
Simply put, all legally cast votes must be counted—including those mailed in—during the nation’s gravest health crisis in more than a century. And, despite lawsuits now filed by President Trump in Georgia, Michigan and Pennsylvania, there is no legitimate legal basis to stop any vote counting. So far, judges in Georgia and Michigan agree that there is “no evidence” supporting the president’s claims of voter or election fraud and have tossed out lawsuits.
On the other hand, a graver crisis is signaled by the president’s actions, strategies encouraged by his staunchest supporters, and recent election rulings by the U.S. Supreme Court. President Trump reiterated (via retweet) Mark Levin’s call for Republican state legislatures to “HAVE THE FINAL SAY” and not “ANY BOARD OF ELECTIONS, SECRETARY OF STATE, GOVERNOR, OR EVEN COURT”—a clear violation of law. The problems at hand include fundamental attacks on the rule of law and our constitutional democracy.
The right to vote remains more illusory than real for too many Americans, especial Black and Brown Americans. For those who made their way to vote despite lengthy lines, waiting hours, missing work and a day’s pay, securing child care for their kids, persisting in the rain and cold, the impediments imposed to block their votes are tactics from a modern-day Jim Crow playbook.
They voted notwithstanding myriad disenfranchisement efforts across the United States, including the closing of thousands of polling locations, especially in communities with larger African American populations, intimidation, voter ID laws and even being pepper-sprayed as they marched to vote.
These are modern-day Jim Crow efforts, compendiums to the 1950s voter suppression efforts. They root in a cynicism about our democracy, a disrespect for civil liberties of all Americans, irrational fears about marginalized people voting, and lingering racism.
Sadly, that which gives rise to these problems will outlast Donald Trump even if he is unseated by Vice President Joe Biden, because this anti-democratic virus is more than a passing phase; it infects the soul of our democracy and reaches well beyond Trump. The president is only a symptom of a larger, endemic problem.
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In a shadow docket opinion, Merrill v. People of Alabama, the Supreme Court upheld Alabama’s ban on curbside ballot drop-offs. The Court’s conservative majority offered no explanation. The ruling to ban counties from permitting curbside voting—which upheld a decision by Alabama’s Secretary of State John Merrill—effectively barred voters with disabilities or those with compromised immune systems from staying in their cars while voting, during the deadly COVID-19 pandemic. The Supreme Court’s highly unusual intervention effectively overturned lower court decisions.
The district court found that a policy allowing, but not requiring, curbside voting provided a reasonable accommodation under the Americans with Disabilities Act (ADA). An appeals court agreed.
And while the Supreme Court’s majority offered no legal basis justifying its decision to intervene and overturn the lower courts’ decisions, Justice Sotomayor, joined by Justices Breyer and Kagan penned a powerful dissent, quoting one of the plaintiffs in the case. She wrote:
“Plaintiff Howard Porter, Jr., a Black man in his seventies with asthma and Parkinson’s Disease, told the District Court: ‘[S]o many of my [ancestors] even died to vote. And while I don’t mind dying to vote, I think we’re past that—we’re past that time.’”
Days after the Alabama decision, the Supreme Court issued a decision in a Wisconsin voting rights case, Democratic National Committee v. Wisconsin State Legislature, again overruling a district court judge. In a 5-3 majority, the Court refused to extend a trial court ruling that would have permitted Wisconsin to count ballots mailed and postmarked on or before election day-up to six days after the election.
Joining the majority, Justice Brett Kavanaugh issued a widely criticized concurring opinion, mired in errors, bolstering false claims generally about ballot counting deadlines and implying that largely states “have decided not to make changes to their ordinary election rules,” during the pandemic, specifically referring to Vermont.
Kavanaugh claimed that vote counting ends on the day of the election—that virtually never happens. Officials in Vermont requested Justice Kavanaugh correct his opinion and while he did so, Vermont Secretary of State, Jim Condos, issued a telling statement that encapsulates the current risks to the American democracy. Condos wrote:
“The opinion still misrepresents the significant changes we made here in Vermont to ensure every vote counts in the middle of a global pandemic…the larger problem with the Justice’s concurring opinion, and the majority opinion largely, is not the absence of the word ‘deadline,’ it is the total lack of regard for the voting rights of American citizens.“
Removing Trump from the White House will be a victory for supporters of Vice President Joe Biden and Senator Kamala Harris—but will not cure the perception or reality of the Supreme Court lacking legitimacy. A defeat of Donald Trump at the ballot box will not undo the growing mistrust of the Supreme Court and concerns about its commitment to protecting fundamental civil liberties, including voting rights.
As one Trump advisor expressed this week, “because the president’s lead is declining, that is where we could lose it…meanwhile we’re waiting for the United States Supreme Court, which the president has nominated three justices to step in and do something. And hopefully Amy Coney Barrett will come through and pick it up.”
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