https://www.newyorker.com-By John Cassidy
The President is transparent about his effort to stack the Supreme Court in his favor for an anticipated challenge to the election results.Photograph from Storms Media Group / Alamy
One thing you cannot accuse Donald Trump of is trying to disguise his nefarious intentions. For months now, legal experts and Democratic campaign officials have warned that he may reject the results of this year’s election and pronounce himself the victor regardless of the vote tally. On Tuesday, Trump virtually confirmed that this is his plan. He also indicated that rushing through the appointment of another conservative to the Supreme Court is a key element of his strategy to stay in the White House.
Before Trump flew to Pittsburgh for a super-spreader campaign rally, a pool reporter asked the President how he reacted to Democratic claims that going ahead with the appointment of a new Justice would tear the country apart. “Oh, I don’t think so,” Trump said. “We need nine Justices. You need that. With the unsolicited millions of ballots that they’re sending, it’s a scam; it’s a hoax. Everybody knows that. And the Democrats know it better than anybody else.”
The ballots Trump was referring to are mail-in forms that many states, including key battlegrounds like Florida, Michigan, and Pennsylvania, are using this year to make it easier and safer for people to vote during the coronavirus pandemic. Surveys indicate that Democratic voters are far more likely to use mail-in ballots than are Republicans. Even though Trump himself uses an absentee ballot—a type of mail-in ballot—to vote in Florida, he has been making unfounded accusations for months about the likelihood of large-scale voter fraud. In July, he told Chris Wallace, of Fox News, “I think mail-in voting is going to rig the election. I really do.”
The President has clearly been laying the groundwork for a legal challenge if the election goes against him, and he’s now confirmed that he expects the Supreme Court to play a key role. In case anybody didn’t get the message from his initial remarks on Tuesday, he repeated it. “So you’re going to need nine Justices up there,” he went on. “I think it’s going to be very important. Because what they’re doing is a hoax, with the ballots. They’re sending out tens of millions of ballots, unsolicited—not where they’re being asked but unsolicited. And that’s a hoax, and you’re going to need to have nine Justices.”
In the Trump lexicon, the word “hoax” has a particular meaning and weight. For years, he applied it to the Mueller investigation. He has also used it to disparage damaging news stories about him, including a report in The Atlantic this month about his disparaging remarks concerning fallen members of the U.S. military. In other words, it’s one of the rhetorical weapons that Trump uses to delegitimize, in the eyes of his supporters, potential threats to him. Now Trump is trying to delegitimize a Presidential election. He is doing it in plain sight, and he is dragging the Supreme Court into the mire with him.
This isn’t just a war of words. As Trump has been escalating his verbal assault, Republican lawyers in a number of states have already sought to challenge, or halt, mail-in voting procedures—thereby establishing a legal basis for subsequent challenges after November 3rd. In a deeply reported piece in The New Yorker this week, my colleague Jeffrey Toobin writes at length about these legal maneuvers. He also highlights the possibility that, come Election Night, Trump could appear to be ahead based on in-person voting, only for the tallies to shift against him as more mail-in ballots are counted in the subsequent days. “If the votes keep shifting, Trump may demand that the Election Night numbers be certified because he doesn’t trust the mail-ins,” Edward B. Foley, a professor at the Ohio State University Moritz College of Law, said.
In another alarming scenario that Toobin raises, some Republican state legislatures, relying on some obscure language in Article II of the Constitution, could even try to nullify the actual votes entirely and appoint slates of Party loyalists as electors to the Electoral College. If you think this sounds too outlandish even for Trump and today’s G.O.P. to consider, think again. Citing Republican sources at the local and national levels, The Atlantic’s Barton Gellman reports that the Trump campaign is making contingency plans along precisely those lines. “With a justification based on claims of rampant fraud, Trump would ask state legislators to set aside the popular vote and exercise their power to choose a slate of electors directly,” Gellman writes.
Any attempt by Trump and the Republicans to reverse the election results and finagle their way to victory would likely escalate into a constitutional crisis. While any initial rulings would be made at the local level, one or more of the cases could well end up in the Supreme Court. That’s what happened in 2000. After Al Gore demanded manual recounts in four Florida counties, a Florida district court and the Florida Supreme Court both issued rulings. Ultimately, the U.S. Supreme Court, in a 5–4 decision, halted the recounts and allowed the initial vote certification, which showed George W. Bush as the winner, to stand.
Following the death of Justice Ruth Bader Ginsburg, on Friday, there is now a 5–3 conservative majority on the Court. Evidently, Trump doesn’t think this margin is sufficient to wait until after the election for a vote on a ninth Justice. Perhaps he is worried that Chief Justice John Roberts, in a last-gasp effort to protect the reputation and independence of the Court, could join the liberal Justices and rule against him. Perhaps he doesn’t want to take the risk.
In any case, the inner workings of Trump’s mind aren’t of much consequence. As the President, what matters are his words and actions. Right now, he is launching a dangerous attack on U.S. democracy. Even as he seeks to undermine the voting process and stack the Supreme Court before Election Day, he is stepping up voter-suppression efforts aimed at minority groups that tend to vote Democratic. And despite a couple of objections from individual Republican senators, his party, the Party of Lincoln, is overwhelmingly behind him. At a White House press conference on Wednesday evening, a reporter asked Trump if he would commit to a peaceful transfer of power after the election. “We’re gonna have to see what happens,” he replied. This is how democracies decay and die.