Alan Zendell, October 20, 2020
The final two weeks of the 2020 election campaign will be a terribly stressful time for Americans. Millions are out of work, COVID-19 infections are exploding all over the country, and countless small businesses are failing. With millions of families unable to pay rent and waiting in line at food banks, we are caught in a tug-of-war among three leaders, none of whom is inclined to blink.
The president changes his mind about a new stimulus bill every day, some days contradicting himself repeatedly, depending on the audience he’s addressing. His latest pitch was to increase the dollar value of the stimulus beyond what even Nancy Pelosi wants, though it’s not clear what he’d spend it on. Mitch McConnell is plowing through with a bill that Senate Republicans may pass, but has no chance of becoming law. And Pelosi postured that there can be no deal if a framework is not agreed upon by close of business today because of all the steps required to pass a law by Election Day.
By the end of today, 35 million ballots will have been cast in in-person voting, which does not count absentee and mail-in ballots that have been mailed or deposited in drop boxes. That suggests one problem may have solved itself. Trump’s constant attacks on mail-in voting and the myriad legal challenges around receipt and postmark dates will continue beyond Election Day, but voters, concerned that Trump and Postmaster Louis DeJoy have sabotaged the postal service, have found a workaround. With two weeks until Election Day, the number of votes already cast in person exceeds a quarter of all the votes counted in 2016.
If we count all the early ballots mailed or delivered to drop boxes, 50 million people may have already voted. If voter participation reaches an unprecedented 150 million, we’re probably a third of the way there. If that trend continues, we could avoid a contested election.
By railing against mail-in voting, Trump may have defeated his own argument as voters take the election in their own hands, where it belongs. But not so fast – Republicans are mounting challenges to state election laws in swing states all over the country. They seem to have lost Round 1 as the Supreme Court let stand an appeals court ruling that Pennsylvania may count ballots received up to November 6th, three days past Election Day. But television legal pundits warn that should not be taken as a precedent that will affect rulings in other states.
In states in which the outcome depends on counting mail-in and absentee ballots, we may still see court challenges that go on indefinitely. What’s really at stake is the viability of our so-called democracy. Congressional gridlock over an obviously needed stimulus bill underlines the problem of a two-party system strangling in a hyper-partisan environment. If Congress remains dysfunctional now, it’s worth asking how it can ever regain its effectiveness and the confidence of the American people.
The reality is actually worse than that. You might ask why, when House and Senate Republicans on the ballot are frantically distancing themselves from the president, the legal challenges persist. The easy answer is that Trump has thown his party into such disarray, those challenges may be the only hope for people who have clung to Trump’s coattails to avoid being dragged down with him if he loses.
Two critical questions remain. One is who is paying for all these court challenges. Big money is being spent to explore every possible way Trump can eke out an electoral college victory, though if he wins re-election while losing the popular vote by a large margin, that won’t help Republican House and Senate candidates. The big money is being spent in a last ditch effort to protect the wealth of white billionaires who are terrified of national health insurance and higher taxes.
That might have been a long shot if Ruth Bader Ginsburg were still on the bench, which is the crux of the current problem. If Amy Coney Barrett takes her seat on the Court before Election Day, she will be the deciding vote on all election challenges. To be fair, we cannot possibly know how she would vote, despite Trump’s confidence that she will side with him. The most important question may be whether Justice Barrett recuses herself on matters related to the election.
Questions of propriety aside, Mitch McConnell and Lindsey Graham have made it crystal clear that the rush to confirm Barrett is all about the election. Trump said, “I need her on the Court” before Election Day. If Justice Barrett, who calls herself a constitutional originalist allows herself to be used to undermine the election, she will demonstrate a total lack of integrity.
Unfortunately, knowing that won’t do the rest of us any good. If she is true to the words she uttered during her confirmation hearings, she must recuse herself.