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Regardless of what happens in the vote count, President Donald Trump has said that he will go to the Supreme Court to ask … one thing or another. When he does, he will have to overcome an obstacle of his own making: his claim that he “already” won the election, during his incoherent speech at 2:30 am Wednesday. Justices, including crucial conservatives like Justices Brett Kavanaugh and Amy Coney Barrett, will not like the speech, putting them in the position of being asked to validate an obviously preposterous claim and an effort to steal the election before the all votes are counted. .
Trump, of course, did not specify exactly what he would ask the Supreme Court to do, only declaring that the “vote” must stop. But the vote is over. It is the vote counting that continues. So it seems reasonable to assume that he meant that his lawyers would ask for some kind of stop for the count.
There are three things Trump’s lawyers could do. They can go directly to the Supreme Court and ask for a blanket closure on the count. But that won’t work. There is no legal basis for not counting votes. Also, you usually can’t go to the Supreme Court without going to the lower courts first. The worst thing for Trump is that he is now behind on the count in the states he needs to win, so it wouldn’t make sense to ask for a general stop of the count.
Trump’s attorneys may also attempt to challenge individual ballots in the states where they are trying to win. This is slow work, done retail, not wholesale. It makes sense when an election comes down to a few votes in some key states.
Also, the most plausible reading of Trump’s comments, Trump can ask justices to block the count of Pennsylvania ballots that arrived after 8 p.m. on Election Day. This issue has already been before the court, which refused to intervene. But three conservatives invited Trump’s lawyers to come back and try again. If the elections are reduced to Pennsylvania, we would have the Bush v. Gore redux.
In any of these three types of litigation, Trump would need five judges to win. Chief Justice John Roberts has already indicated that he would vote with all three court liberals on the Pennsylvania issue. That means Trump needs Kavanaugh or Barrett to achieve his legal goal.
This is where Trump’s ridiculous claim that he already won will hurt him, and where Joe Biden’s contrasting refusal to claim too much will help him. The problem is not that Trump’s remarks are used in court to challenge his motives, as was the case with the Muslim travel ban. This time, your intention is not technically a problem.
Rather, Trump’s words set an atmosphere in which he has shown that he seeks to block votes from being counted because, in his view, he “already” won based on a subset of the votes.
Indecisive judges will undoubtedly feel pressured to vote with their fellow staunch conservatives, in favor of Trump. But they face a reputational problem if they do. And Trump’s words deepen that problem for both.
For Barrett, the danger is that she will forever be known as the justice that the presidency gave the man who had just put her on the court. If the matter in court could be described as one of basic fairness, she could accept the risk of casting the deciding vote. But now that Trump has said he has already won, a claim that even Fox News immediately refuted, ”it is blatantly clear that the court would be giving Trump a victory that he seeks to achieve with falsehood.
Barrett has deep conservative jurisprudential commitments. But she is an ideological conservative rather than a partisan conservative. You don’t want your permanent legacy to have acted as a political stunt. To vote with Trump, he needed coverage in the form of a credible claim from a seemingly reasonable Trump. She didn’t get it.
As for Kavanaugh, the problem is that he has said that the courts should not change the election rules in the days leading up to the vote. It seems that he takes that concern seriously. It’s the most likely explanation for why he initially voted to exclude late-arriving Pennsylvania ballots, then appears not to have voted that way when the Trump administration returned to court to ask for the issue to be reconsidered. Implicitly, Kavanaugh may have been recognizing that it is one thing to prohibit the counting of votes not cast and quite another to block the counting of votes cast in good faith and in accordance with established rules.
Trump’s speech made it explicit that he wants to prevent votes from being counted in real time and therefore change the rules midway to achieve the victory he claimed to have achieved. That makes it harder for Kavanaugh to say that it would be fair to stop counting.
Like Barrett, Kavanaugh needs to cover himself up to say it would be fair to stop the count. Trump denied him that cover with his naked denial of reality.
It is not the first time that he has faced the courts, Trump is his worst enemy. – Bloomberg
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