The Battle Royal of 2020

It may be less than a week from a presidential election, but a battle royal has been underway for months. Like two navies angling for a better broadside, the legal teams of Donald Trump and Joe Biden are already sparring over the integrity of the 2020 vote before a single vote has been counted.

While a presidential incumbent barnstorms in the Lower 48, and his opponent wrestles with self-inflicted scandals in his Wilmington hideaway, hundreds of lawyers from both camps are squaring off. Across the country, eleventh-hour election rulemaking and changes to voting practices are being challenged in state and federal courts by manicured combatants in pinstripes and wingtips.

At stake is the result of the presidential election. Democrats are confident that the table has been set for a victory after November 3, by fair means or foul.  To the drumbeat of a Fourth Estate long since stripped of its honor and integrity, the electorate has been warmed to the idea that any electoral victory for Donald Trump is an illusion soon reversed by additional ballot counting and peremptory court challenges.

The front lines in the effort to bring about this outcome are in the states. The winning Democratic formula revolves around early voting, prolonged ballot counts, eliminating signature matching, assuring postal delays for mailed returns and harvesting by third parties. Republicans have pushed back on these practices as breeding grounds for fraud and corruption.

Of the eleven states that have adopted universal mail-in voting, only one, Utah, leans Republican. Utah senator Mitt Romney, always the burr under President Trump’s saddle, endorses the practice. The states of California, New Jersey, Nevada, and Vermont, home to 34 million voters, have used COVID fearmongering as a Black Swan to change their election practices. Governors in those states have speculated upon science, proclaiming in-person voting as a super spreader while blessing street protests and everyday queues at motor vehicle agencies, food stores, and cafes.

During the summer, the Trump administration came out swinging against states playing fast and loose with time-honored federal and state election rules, filing a flurry of lawsuits in seven states. Although hundreds of claims have been filed over pandemic decrees, the Republican National Committee (RNC) and its state affiliates have put their chips down on 40 lawsuits disputing Democrat hijinks in 15 states.

With less than a week before the election, here’s a review of the most recent Republican legal wins and losses in pivotal states that make up more than half of the electoral votes required for victory.

In Iowa, a state where in-person voting is permitted, the high court upheld Trump’s challenges to stop the practice of mailing out absentee ballots with pre-filled information and taking liberties to fix incomplete ballots upon their return.

In early October, the Texas Supreme Court ruled against Harris County election officials intent on mailing ballots to every registered voter. A county with the most Democrat voters, Harris election officials are now attempting an end run around the ruling by weaponizing COVID to expand curbside voting to anyone with or without an infirmity.

In late September, a federal judge struck down an attempt by Arizona’s Navajo tribal nation to extend the deadline to count ballots postmarked on Election Day. The case has been appealed to the 9th Circuit. Federal and state high courts in Wisconsin , Georgia, and Maine,  have also rebuffed state attempts at ballot extensions and other procedural delays in the voting process.

In 2018, Florida gave full voting privileges to felons who had completed their sentences. On September 11, a federal appeals court upheld a 2019 modification to that law that would disqualify the voting privileges of three-quarters of a million convicted felons who have not satisfied the full financial obligations of their sentence. In response, Democrat patrician and former presidential candidate Michael Bloomberg, who has pledged $100 million from his super PAC to buy a Florida victory for Biden, has already spent $16 million to satisfy the outstanding fines of 32,000 felons who would otherwise be eligible to vote.

In late September, a Nevada federal judge dismissed a Trump lawsuit challenging the state’s newly enacted universal mail-in vote policy and their intention to count ballots a week after the election. The Republicans lost a similar challenge in New Jersey earlier this month when the federal court threw out an RNC complaint soon after the Democrat-controlled legislature backed up the governor’s executive order to mail ballots to every registered voter, as well as extending the ballot count from ten days before the election to seven days after.

A federal court in Minnesota and a state court of appeals in Michigan issued  similar judgements allowing postmarked ballots to be counted from seven to 14 days after Election Day. RNC challenges over state-legislated extensions also went down to defeat in North Carolina and Montana, perhaps a foregone conclusion for Big Sky Country when the appeal reached San Francisco’s partisan 9th Circuit.

The Trump administration fared no better in the battleground state of Pennsylvania. Republicans have been shot down in their attempt to block further distribution of ballot boxes critical to mail-in voting. On October 17, arguing without Justice Ginsburg to a 4-4 tie, the U.S. Supreme Court let stand a Pennsylvania high court decision to extend the ballot count deadline, admitting ballots even absent a postmark. Chief Justice Roberts, the court’s fickled switch hitter, sided with his liberal associate justices.

On October 23, the Republicans hit back in the Keystone State. By filing an emergency request that the U.S. Supreme Court revisit the past week’s decision, it is with confidence that the transformative addition of Justice Amy Coney Barrett to the bench will break the tie.

The liberal wing of the U.S. Supreme Court seems intent on legislating a federal election from the bench, turning themselves into political activists and pawns of the Democrat party. The majority conservative justices have largely held with an interpretation of the Constitution that leaves decisions about the voting process to the state legislatures.

When Republican-run state legislatures maintain traditional voting practices, state or federal jurists lack the authority to overrule those governing bodies without compelling evidence of harm. For example, on October 26, the U.S. Supreme Court answered an emergent appeal from Wisconsin Democrats by overturning an activist district court decision to unilaterally extend the ballot deadline.  A similar decision is now pending for North Carolina, where a federal district court previously upheld an executive branch decision at odds with a Republican state legislature to push back the ballot deadline six days, using COVID and postal delays as rationale.

As a general maxim, when Democrat governors extend vote count deadlines solely by executive fiat, Republican challenges have strong headwinds. Where Democrat state legislatures back those actions, legal protests are often frustrated.

Democrat state house executives and legislatures have been more successful in implementing sudden and radical changes to voting practices than the Republicans in mounting an effective legal challenge. Casualties will continue to pile up on both sides of November 3, as Republican hopes for a decisive and fair presidential election outcome increasingly reside in a newly constituted originalist majority on the U.S. Supreme Court.

Image: Marco Verch

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