Name: An all-American nightmare: Brace for a massive crisis if a 5-4 Supreme Court decides this election
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An all-American nightmare: Brace for a massive crisis if a 5-4 Supreme Court decides this election

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AdvertisementBy New York Daily NewsOct 24, 2020 at 5:01 pmFrom former national security officials to elected leaders, many longtime Republicans have made common cause with Democrats in sounding the alarm about the prospect that Donald Trump will call into question the results of the November election, if not challenge the peaceful transfer of power itself.In this chorus, one former official who stands out is Chief Justice Charley Wells, a retired chief justice of the the Florida Supreme Court who, though having been appointed by a Democratic governor, ruled in favor of George W. Bush — and whom the Supreme Court of the United States later cited approvingly in the landmark that, on a 5-to-4 vote, decided the 2000 presidential election.Advertisement“From my work in Bush v. Gore, I learned a great deal about the laws that control the election of the president,” Wells in an email to friends, later published by the South Florida Sun-Sentinel. “A fundamental lesson I learned is that the law with respect to ‘contested’ elections is very confusing, outdated and fragile.”Wells, more than most, is mindful of the perilousness of the present moment — and how courts should not be called on to decide the victor in the contest between Trump and Joe Biden. The only way to eliminate that threat, in the judge’s view, is by voting — and doing so in droves.Advertisement“Any basis for a contested election can only be eliminated...by the election not being close,” Wells wrote.Of course, that’s not what Trump wants. Barring the extreme unlikelihood of a convincing Trump victory, a close election, with the outcome hinging on narrow margins in a number of swing states, would be a boon to him.His campaign strapped for cash, his poll numbers in the red, and voting enthusiasm through the roof, he sees the writing on the wall — and the courts as his only saving grace. He more or less made that intention plain when he said he’d like the seat of the late Justice Ruth Bader Ginsburg filled come Election Day because his own future “.”“I think it’s very important that we have nine justices,” Trump has said. “And I think having a four-four situation is not a good situation, if you get that,” he added. “I don’t know that you’d get that. I think it should be eight-nothing or nine-nothing. But just in case it would be more political than it should be, I think it’s very important to have a ninth justice.”Last week, the Supreme Court gave the nation a taste of what a 4-to-4 ruling in a highly consequential election case looks like, when Chief Justice John Roberts joined with three of his liberal colleagues to yield a divided vote that a Pennsylvania Supreme Court decision allowing a three-day extension to accept and count mail-in ballots postmarked on or before Nov. 3.That’s no doubt a big victory for voting rights, ensuring that every Pennsylvanian wishing to exercise the franchise safely during a pandemic gets every opportunity to do so. But in the two issued by the Supreme Court in the dispute, neither side in the even split among the justices explained the basis for their votes.There’s no need to. The reality is that Republicans were the ones who asked the high court to intervene and potentially disenfranchise tens of thousands, enough to tip an election. And the reality is that Republicans now control the Supreme Court, which in ruling after ruling — affecting states like , , and — have consistently sided with Republican election officials, who have resisted even modest efforts to make voting easier.If this anti-democratic, and anti-Democratic, streak shows us anything, it is that the Pennsylvania case was an outlier. Indeed, two days after the Supreme Court split evenly in that case, Roberts joined his conservative colleagues to a lower-court ruling that allowed Alabama voters with health impediments the simple accommodation of curbside voting under the Americans with Disabilities Act. The lower-court ruling didn’t mandate curbside voting statewide; the judge in that case only let counties willing and ready to implement it the latitude to do so.AdvertisementThat was a bridge too far for the Supreme Court’s conservatives, who couldn’t even bother to explain why they’d keep in place the ban on curbside voting for vulnerable voters. In dissent, Justice Sonia Sotomayor spoke up for these voters — by directly from “a Black man in his 70s with asthma and Parkinson’s Disease” who testified in the case.“[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,” she quoted the man as saying.The voice of that diminished, three-justice minority will grow feebler once Judge Amy Coney Barrett takes her seat. When that happens, not even an occasional defection from Roberts will matter anymore. Against the clock and Americans’ real need for coronavirus relief, the Republican-controlled Senate Judiciary Committee approved her nomination on Thursday, and the full Senate is widely expected to confirm her this coming week. On Friday, Mitch McConnell, the Senate majority leader, took the aimed at clearing the way for her confirmation. It’s happening.During her confirmation hearings, Barrett gamely batted away any suggestion that she’d be a surefire vote for the president who nominated her should Trump v. Biden ever reach the Supreme Court. Of course she had to do that. But she did not commit to recusing from such a case — despite a that she cannot in good conscience be a judge in the case that could decide the electoral fate of the president who just gave her the job.Instead, she . “I would certainly hope that all members of this committee would have more confidence in my integrity than to think that I would allow myself to be used as a pawn to decide this election for the American people,” Barrett said during her hearings.But the question for the American public isn’t about confidence in Barrett’s integrity. It is about its already diminished expectation that the Supreme Court will be fair and protective of voting rights during an election season that’s already seen — and a steady stream of Trump-friendly results in that, as it happens, Republicans have been able to capture.AdvertisementWith Barrett’s ascension, the Supreme Court’s capture will be complete. And a redux of 2000 is a real possibility.And like most sequels, this one is sure to be bloodier, louder and more chaotic than the original.WeekdaysCatch up on the day’s top five stories every weekday afternoon. &gt; In the city of Philadelphia, the birthplace of the Constitution and the American project, an army of election officials and election lawyers to turn Pennsylvania into a battleground of battlegrounds. Having diminished expectations in Florida, Michigan and Wisconsin, all states Trump carried in 2016, his operation seems determined to make a lot of noise challenging mail-in ballots — notwithstanding the tens of thousands that are expected to get rejected outright as a result of an absence of so-called secrecy envelopes, which the state Supreme Court ruled in September could be lawful grounds for invalidating votes.The Pennsylvania Supreme Court remains in the eye of the storm. On Friday, the state’s top court that county election authorities “are prohibited from rejecting absentee or mail-in ballots based on signature comparison conducted by county election officials or employees, or as the result of third-party challenges based on signature analysis and comparisons.” That is, signature-mismatch challenges to vote-by-mail, partisan or otherwise, will not be allowed.This is a result that Republican Party lawyers are certain to take to the highest court of the land yet again. And it may well be Justice Barrett’s first-ever Supreme Court vote, allowing Trump to contest validly cast ballots. There’s no reason why the Supreme Court should even bother with the case: the Pennsylvania justices were careful to decide it as a matter of state law, not federal constitutional law.But that won’t stop Republican-appointed justices on a mission. As Chief Justice William Rehnquist observed in a separate opinion in Bush v. Gore, presidential elections are different, and the usual rules can be bent. “In order to determine whether a state court has infringed upon the legislature’s authority, we necessarily must examine the law of the State as it existed prior to the action of the court,” Rehnquist wrote.AdvertisementElsewhere in the ruling, he and the four other justices who handed Bush the presidency declared, “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”Donald Trump is determined to exacerbate, if not outright exploit, those complexities — in Pennsylvania or elsewhere. Except this time the Supreme Court, and the nation, won’t live to tell this story. If he has to take both down with him, he will. Only a landslide may yet save what remains of our democracy.Farias is a journalist who writes about the Supreme Court and legal affairs. Advertisement

AdvertisementBy New York Daily NewsOct 24, 2020 at 5:01 pmFrom former national security officials to elected leaders, many longtime Republicans have made common cause with Democrats in sounding the alarm about the prospect that Donald Trump will call into question the results of the November election, if not challenge the peaceful transfer of power itself.In this chorus, one former official who stands out is Chief Justice Charley Wells, a retired chief justice of the the Florida Supreme Court who, though having been appointed by a Democratic governor, ruled in favor of George W. Bush — and...

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Cristian Farias

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An all-American nightmare: Brace for a massive crisis if a 5-4 Supreme Court decides this election

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