Yikes and OMG, only a couple of days until the US election, and then comes…what?
Chaos? Horror? Or sweet satisfaction and relief?
A few days back a dear friend paid me the very pretty compliment of asking my opinion on how it was all going to turn out, and related to that, what was the big deal about SCOTUS invalidating mail-in ballots posted by election day but only received later? Like I’m the guy to ask. So, coming on all sage, I fired back a lengthy email. My answer on the asymmetric effect of invalidating mail-in ballots (with a little legal analysis thrown in – hey, I’m a lawyer, it’s a reflex) might be of interest, so here it is, with some editing:
Yes it affects both parties, but not equally in most states. The available data indicate that Republican voters are far less likely to vote by mail than Democrats. For some reason this was true even before the pandemic – in the 2018 midterms, the real extent of the Democratic “blue wave” only emerged gradually, over a couple of weeks, as mail-in/absentee ballots were counted – and this time around the trend is magnified by different views of the dangers of COVID, the perception of which in nut-bar America has become a political trait. Republican voters, brainwashed by the constant misinformation of Trump and his henchmen, believe COVID isn’t anywhere near as serious as liberals say, and indeed is practically a liberal hoax, so they have no fear of going out and voting in person. Trump’s constant messaging that mail-in ballots are unreliable and rife with fraud contributes to this too. Democratic voters are properly afraid of COVID, and know Trump is lying about mail fraud, and vote by mail if they can.
Not everywhere, though. It appears not to be the case in the vital swing state of Florida, where the population skews toward an older demographic, and aged Republicans are quite likely to vote by mail. Efforts have been made by the Republican leadership to encourage these voters to mail in their ballots as usual.
It’s also emphatically the case that the number of Democrats willing to risk in-person voting has been greatly increased by Trump’s attempts to kneecap the postal service, and the right wing Supreme Court’s ludicrous ruling about votes that are posted on time, but arrive late because of the postal bottleneck. At this point, what with the problems at the post office, the message has gone out that it’s actually too late to ensure that mailed ballots will be received by election day, so Democratic voters are undoubtedly lining up in droves to cast in-person votes, despite the risk, and the abominable wait times.
The Supreme Court’s ruling is particularly galling to those of us with legal training, since posting your ballot creates a situation analogous to the dilemma that gave rise to the common law “mailbox rule”, which held that once you posted the acceptance of an offer, the offeror couldn’t rescind that offer even when he hadn’t yet received the acceptance. The acceptance “crystallized” the rights of the parties at the moment of mailing. Every first year law student learns this, and any judge ruling in good faith would instinctively apply a sort of mailbox rule to ballots, crystallizing their validity at the point of mailing, for the same reason it was applied to contracts: because it’s fair and just.
As to the outcome, I was absurdly sanguine; no problem, I said. Trump will lose bigly, I said. It’s going to be an epic floor-mopping. I said. God knows I believed it, then. Now, as the moment arrives, I’m quaking in my sweaty boots.
All across the country, lawyers hired by the GOP are working without respite to suppress the vote and invalidate ballots, making all sorts of specious arguments which, sadly, aren’t always specious enough to be rejected by the Trump-appointed stooges in the courts, right up to the Supreme Court level, at which Brett Kavanaugh, the talking pile of pigshit, issued that awful ruling on mail-in ballots last week. His logic: it would sow confusion and dismay to allow late-arriving ballots to overturn the outcome as reported on election night (Justice Kagan’s dissent noted that this was an absurd argument, since there is no outcome to overturn until all the valid ballots are counted). The ruling, while limited to Wisconsin, obviously has broader implications for the legal arguments to come. Meanwhile, litigating furiously, GOP lawyers are now in Texas arguing that 100,000 ballots already cast should be thrown out, on the grounds that they were gathered in a drive-through voting program that they claim was illegal. Their purely technical assault on voters’ rights makes no argument that the votes were otherwise invalid because of errors in the signing of envelopes and the like, or were cast by unregistered voters, or cast too late, or that the drive-through program gave rise to logistical unreliability or potential fraud – the usual Republican bullshit arguments – no, it’s just that instead of parking their cars and walking to drop-off boxes, the voters handed them to election workers through their car windows (a COVID safety measure, but why promote safety?). They may as well argue that all votes cast by left-handed people should be thrown out, just because, and what do you bet some chowderhead Texas judge would concur so long as most left-handed people were Democrats? More of the same almost certainly to come in all of the swing states. As I write this, a battle royal in crucial Pennsylvania seems especially likely.
On top of the legal shenanigans, the threat of right-wing violence remains very real. A recent episode of pundit John Heilemann’s Showtime series, The Circus, showed why: chillingly, it featured a lengthy segment in which the members of one of those self-styled “militias” told the interviewer that Trump was going to win in a landslide, no doubt about it, and if the Democrats tried to claim victory they’d be breaking out the AR-15s. They absolutely believe that Donald is going to win an overwhelming majority of the votes, and any reported outcome to the contrary can only be the fraudulent artifact of a rigged system, so if it’s civil war the Dems and their Libtard collaborators want, bring it.
Then there’s Donald himself. He’s been laying the groundwork for months, with his blather about voter fraud, the imaginary perils of voting by mail, the many efforts by Democratic moles within the election machinery to fix the outcome, and so on. He’s told MAGAWorld that if he loses, it’s rigged, and that’s that. MAGAWorld believes him, utterly. If he indeed loses, please Jesus, will he scream like a stuck pig and call his Proud Boys to duty, while imploring his pet judges to see it his way? Actually, is there any chance he won’t?
Worse: it remains possible, however unlikely, that Trump could win fair and square within a profoundly undemocratic electoral system that has twice this century delivered the loser of the popular vote to the White house, with disastrous consequences in both cases.
It can’t be, I tell myself. Last time was an unbelievably unfortunate and almost inconceivably unlikely fluke, a one-off, never to be repeated. Long odds like that can’t come through twice in a row. They can’t.
But they can.
It could be a hell of a couple of weeks, as Trump rants and raves, the MAGA monsters hit the streets, and legal battles over ballots, purported fraud, disputed voter eligibility, and God knows what else rage up and down the Federal Court system in dozens of States, while the rabid conservatives of the newly stacked Supreme Court sit there with their bibs on ready to chow down when it all lands on their plates. Yessir, it could be a real shitshow.
Or Donald could be trounced so convincingly that the outcome is essentially determined on election night, deflating the GOP balloon.
Who will the cops side with, the shit hits the fan? What about the Joint Chiefs? Will blood run in the streets? Would SCOTUS really install Trump, as it did Bush, and pole-axe the American experiment?
I guess, to quote noted political philosopher Harry Callaghan, what we have to ask ourselves is do we feel lucky?