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GOP Dirty Tricks in Play

Mark Karlin: Given that we are in the midst of a record turn-out presidential and down-ballot campaign, the Supreme Court intervention in the middle of the campaign is a shocking assault on democracy.
GOP Dirty Tricks

On Monday Night, the Supreme Court Stole at Least 80,000 Votes From Joe Biden in Wisconsin, and There Is More SCOTUS Voter Theft in the Offing

In a gravely ominous sign that the Supreme Court will do what Trump has been asserting openly, rule hundreds of thousands of mail-in ballots invalid (many in key battleground states), the Court ruled Monday night that mail-in ballots marked by November third, but arriving up to six days later, could not be counted in the 2020 election in Wisconsin.

This is particularly alarming because the Supreme Court allowed for such a provision in the Wisconsin primary voting that saw an unexpectedly large mail-in and in-person turnout. Indeed, this adjustment for the pandemic and slow mail delivery resulted in 80,000 additional valid mail-in ballots being counted.

Given that we are in the midst of a record turn-out presidential and down-ballot campaign, the Supreme Court intervention in the middle of the campaign is a shocking assault on democracy.

Given that we are in the midst of a record turn-out presidential and down-ballot campaign, the Supreme Court intervention in the middle of the campaign is a shocking assault on democracy. While Supreme Court opinions often have several legal conclusions in them, what the court has essentially been asserting is that state courts, including state supreme courts, cannot rule on any electoral accommodations during the pandemic and slow mail delivery unless they were approved by the state legislature.

Given that Wisconsin and Pennsylvania, among other battleground states, have Republican legislatures due to gerrymandering following the 2010 mid-terms that the Democrats lost, the Wisconsin ruling does not bode well for a raft of Trump campaign and state GOP cases that will be becoming before the court with just a week before the end of the election on November 3 — and litigation on invalidating votes and potential recounts after the election.

Indeed, according to a recent article in New York Magazine,

At least nine times since April, the Supreme Court has issued rulings in election disputes. Or perhaps ‘rulings’ is too generous a word for those unsigned orders, which addressed matters as consequential as absentee voting during the pandemic in Alabama, South Carolina and Texas, and the potential disenfranchisement of hundreds of thousands of people with felony convictions in Florida. Most of the orders, issued on what scholars call the court’s ‘shadow docket,’ did not bother to supply even a whisper of reasoning,” Adam Liptak notes in the New York Times. “The orders were responses to emergency applications, and they were issued quickly, without full briefing or oral arguments (hence the ‘shadow docket’).

Almost all of these SCOTUS orders sided with Republican efforts to disenfranchise registered voters in one way or another.

The Wisconsin Democratic Party Chairman vowed to contact mail-in Democratic voters and notify them of the change, but that appears like a tall order given that a record turnout general election could see perhaps 200,000 or mail-in ballots postmarked on November 3 but arriving late. The Washington Post quotes him:

“The most powerful rebuke to Republican judicial activism is to defeat Trump and elect Joe Biden and Kamala Harris in a landslide,” Wisconsin Democratic Party Chairman Ben Wikler said in a statement after the Supreme Court’s ruling was announced. “The Democratic Party of Wisconsin will double down on making sure that every Wisconsin voter knows how to exercise their right to vote in the final eight days of this election.”

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However, it creates a nail biting uncertainty whether the Biden campaign has the infrastructure, along with other mobilizing groups, to contact that many voters to get their ballots in now or vote in-person, with just a week to November 3.

With Amy Coney Barrett seated as of today on SCOTUS, a salvo of Democratic vote disenfranchisement cases will be fast-tracked to the Supreme Court. Although John Roberts ruled with the court’s three liberals in letting stand the Pennsylvania State Supreme Court ruling that ballots marked by November 3 could arrive and be counted for several days after that date, the Trump campaign and state GOP are going to ask for an expedited review of the case based on a new legal approach to declare the post-November 3rd ballot arrivals as uncountable. With Barrett on the Court, the case is likely to be heard and decided by a 5-4 or 6-3 vote in favor of Trump.

These Republican voter suppression (theft) cases include a similar late-arrival ballot case in battleground North Carolina. If the Supreme Court rules with Republicans on 90 percent or more of these cases, some which will even be filed after the election, it will make it very difficult for the Biden campaign to catch up with the SCOTUS discarded or invalidated votes.

Brett Kavanaugh, as noted in the caption below the photo above, appears to be fully adopting Trump’s claim that the winner of the election will be the person who has the most votes on the evening of November 3.

As Heather Cox Richardson wrote in her newsletter last night:

Justice Kavanaugh went further to argue that states need to avoid “the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of the election. And those States also want to be able to definitely announce the results of the election on election night, or as soon as possible thereafter.” This is the argument Trump has been making to delegitimize mail-in ballots, and it is political, not judicial. Absentee ballots do not “flip” an election; they are a legitimate part of an election that cannot be decided until they are counted. And the idea of calling an election on the night it is held is a tic of the media. In fact, no state certifies its election results the day of the election. Some take weeks.

Huffpost believes Kavanaugh’s position is more dire, as it noted in its Tuesday morning newsletter:

Hidden within the main concurrence written by Justice Brett Kavanaugh are two threats much greater than overturning six extra days for ballots to arrive by mail: He explicitly endorsed legal theories that could help President Donald Trump stop the counting of mailed ballots after Election Day or, worse, override results with the help of Republican state legislatures.

Trump won Wisconsin by about 23,000 votes in 2016 and in Pennsylvania by a little more than 44,000 votes.

Remember that Kavanaugh, Barrett and Roberts all worked on the legal strategy to get George W. Bush elected on a 5-4 vote by the Supreme Court.


The worst fears that the Supreme Court will steal the election for Trump by invalidating valid votes appear to be on the cusp of becoming a reality.

Mark Karlin