The 2020 election could be a repeat of Bush v. Gore on steroids, with the U.S. Supreme Court deciding whether Trump or Biden will be President for the next four years.
And if Republican Senate Majority Leader Mitch McConnell succeeds in confirming a replacement for Ruth Bader Ginsburg by the middle of November, the new justice could end up being the deciding vote who gives Trump the Presidency for a second term.
In short, Trump could appoint the person who, by her single vote, could thank Trump by handing him four more years.
Ted Cruz even made the Repubican strategy to use the Supreme Court appointment to hand Trump a second term explicit, telling Sean Hannity that given the risk of a contested election, it would be irresponsible to leave the Supreme Court, who could determine the results, with only eight seats.
Trump could appoint the Justice who, by her single vote, could thank Trump by handing him four more years.
If, as in 2000, there’s a disputed election that ends up being decided in court, a constitutional crisis will already be in process. There will likely be huge demonstrations in the streets across the U.S.—both by both Trump and Biden supporters—with many Trump backers (and possibly some Biden voters) carrying guns. The frightening result could well be widespread violence. Trump and Barr could even use the violence to declare a national emergency and send in federal troops or other law enforcement to put down the pro-democracy demonstrators and even seize absentee ballots.
If the end game then becomes the Justice just installed by Trump a few weeks before giving him a 5-4 or 6-3 Supreme Court majority to hand him a second term, it could well be the end of what’s left or American democracy.
Here’s how the closing act of American democracy could play out:
If, on election night, based only on the in-person voting and mail-in ballots already counted, Biden has enough Electoral Votes to credibly claim victory, the worst of the crisis might be averted, although Trump will claim fraud anyway.
If, on the other hand, there are more uncounted mail-in and provisional ballots than the margin of victory in enough swing states so the Electoral College winner cannot credibly be determined, a monumental battle royale will begin.
Trump will claim that millions of ballots were mailed in by undocumented immigrants or are otherwise fraudulant, shouldn’t be counted, and that the winner should be decided by the in-person ballots alone. He will call on his base to go into the streets and exercise their “Second Amendment rights” to come armed. Simultaneously, Biden supporters will also flood the streets—progressive coalitions are already planning for this possibility. The chances for violent clashes are high. And violence in the streets could lead Trump and Barr to declare a national emergency, or as Roger Stone advocates, invoke the Insurrection Act of 1807 to send in federal forces to put down the pro-Biden demonstrations and even seize and destroy allegedly fraudulent absentee ballots.
Simultaneously, there will likely be dozens of court battles at the state level, primarily over which ballots should be counted. (Which ballots should have counted, or been recounted, and by when was the core issue in Bush v. Gore.) Republicans will likely challenge signature matches, smudged or missing postmark dates, or small technicalities on mail-in ballots. Democrats will likely argue for a more expansive interpretation of what votes should count.
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Unlike Bush v. Gore, where the recounting of only the State of Florida was in contention, there will likely be lawsuits in numerous states and conflicting decisions from different state and Federal courts. There is even the possibility that in states where the legislature and Governorship are controlled by different parties, two sets of electors, one for Biden and one for Trump could be certified, which could also lead to court challenges, as well as monumental congressional battles over which Electoral Votes count.
In the end, several, or even many, of these cases could end up in the Supreme Court who, as in Bush v. Gore, could make a ruling determining the next president.
If oral arguments are held before a replacement for Justice Ginsburg is confirmed, the Supreme Court will then have only eight justices, three “liberal” and four (including Roberts) “conservative.”
But Roberts is a bit of a wild card. He’s historically played a key role in restricting voting rights. But he’s also a bit of an institutionalist. There’s a chance that faced with a multi-million vote popular vote majority for Biden and likely chaos in the streets, Roberts might vote with the liberal block. There’s even an outside chance he could convince one more other conservative Justices to put country over party and prevent a tie vote.
If Roberts votes with the other conservatives, Trump will likely be confirmed for a second term. If, on the other hand, Roberts sides with the liberals and all the other conservatives hang together, the Supreme Court would tie 4-4, which means that the lower court decisions in contention would remain in force. The Electoral College winner—and therefore the next President—would then be determined by whether, in the aggregate, the various lower court decisions give Biden or Trump an Electoral College victory.
If we fail, it’s R.I.P The United States of America, 1789-2020.
If, on the other hand, Justice Ginsburg’s replacement has already been confirmed when The Supreme Court hears oral arguments on the election case(s), there will then be a 6-3 conservative majority. It’s hard to believe that only weeks after being appointed by Trump and being confirmed by McConnell’s Repulican Senate, the new Justice will turn around, break her side of the bargain, and cast a vote that effectively denies her patron, Donald John Trump, a second term.
So there you have it—Trump appoints a new Justice, McConnell’s Republican Senate majority confirms her before disputes over the 2020 elections are heard by the Court, and she then awards Trump a second term in gratitude.
That would pretty much be the end of what’s left of American democracy. For the second time in 20 years, a President loses the “popular vote” (in most democracies they just call it the vote), is awarded the presidency by one or two votes in the Supreme Court, with the victory sealed by the very Justice appointed only a few weeks before by the president whom she naturally sides with and confirmed by a Republican Senators elected by 15 million fewer voters than Democratic Senators.
This is truly an existential reckoning. Democrats and progressives must use every tool at their disposal to prevent the confirmation of Justice Ginsburg’s successor before the next president is inaugurated. They must use every obscure rule at their disposal to delay a vote. They must pressure one or two more Republican Senators—if there are a few who still have any conscience—to refuse to confirm any nominee before January's inauguration in the name of patriotism. They must credibly threaten to end the filibuster, add Supreme Court Justices, and award the people of Puerto Rico and Tthe District of Columbia two voting Senators each. They must flood the streets with demonstrators demanding the Senate vote be postponed.
If we fail, it’s R.I.P to the United States of America, 1789-2020.