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Informed Dissent
NEWS & VIEWS
Either Amy Coney Barrett understands why Trump picked her, or she doesn’t. I’m not sure which is worse.
Informed Dissent
PUBLIC DOMAIN
In 2016, Notre D ame law professor Amy C oney Barrett opined that it would be inappropriate for M errick G arland to replace her mentor, Antonin S calia, on the S upreme C ourt during an election year because doing so would “dramatically flip the balance of power.dz
On S aturday, the same Amy C oney Barrett accepted D onald Trump’s nomination to replace R uth Bader G insburg on the ourt. er enate confirmation, which seems all but certain, will not only alter the balance of power days before a presidential election. t will cement right- wing control of the judiciary for a generation.
With Barrett on the bench, R epublicans believe they’ll have the votes to overturn Roe v. Wade, roll back environmental regulations, and block labor protections. f they can confirm her by N ovember 1 0 , she’ll hear arguments in a case that could overturn the ffordable are ct. While nearly every reputable legal scholar has dismissed the underlying theory as preposterous, Barrett has made clear she’s no friend of the AC A, and she’s not that worried about precedent. s she wrote in a law review article (emphasis mine): “ The S upreme C ourt’s constitutional mistakes are etremely difficult to correctǢ one can hope only for a change of heart, a change of personnel, or a change by
Get in on the fix
By Jeffrey C. Billman
constitutional amendment.dz
F or Trump, seating Barrett q uickly is about something more important than undoing the ǣ him. e needs a ninth justice in place because — well, ’ll let him tell youǣ “ think this ȑelection] will end up in the S upreme C ourt, and think it’s very important that we have nine ustices.dz is allies have been even more eplicit. enator Ted ruǣ “ne of the biggest reason ȑsicȒ we will confirm the nominee BE F OR E E lection D ay is to ensure a full 9 - J ustice majority to resolve any (inevitable) election disputes.dz enator Lindsey Grahamǣ “ ͠Ȃ͠ S upreme C ourt is not a good deal for merica. ow, we may have litigation about who won the election, but the court will decide.dz
N ever mind that having eight justices didn’t bother them in 201͢. The important thing is that they’re talking about the C ourt deciding elections like it’s normal — something to expect rather than something that’s happened once in ͡8 presidential elections.
The math is simple: According to this weekend’s Washington Post/ ABC N ews poll, J oe Biden is winning voters who plan to vote early or absentee by 3 6 points, while Trump is up among lection ay voters by 1ͥ. o Trump has spent months raising doubts about mail-in voting. e’s amassed thousands of lawyers to contest absentee ballots in swing states where Trump is behind, while R epublican apparatchiks lay the groundwork to turn an election Trump is likely to lose into a legal contest he can game.
Last week, the epartment of J ustice announced an active investigation — something it never does — into nine discarded military ballots in Pennsylvania, highlighting the fact that some contained Trump votes, thus fueling the president’s conspiracies. t turned out to be a temporary contractor’s administrative error. M eanwhile, Pennsylvania R epublicans have refused to address the issue of so- called naked ballots, which election officials fear could disenfranchise 1 0 0 ,0 0 0 absentee voters on a technicality. t the same time, they’ve asked the S upreme C ourt to overrule the Pennsylvania S upreme C ourt’s decision to extend the state deadline for absentee ballots.
The Trump campaign previously challenged N evada’s move to expand voting by mail. t lost, but ttorney G eneral Bill Barr then claimed in an interview that N evada’s change would lead to fraud: “ S omeone will say the President ust won evada. Ǯh, wait a minute! We just discovered 1 0 0 ,0 0 0 ballots! E very vote will be counted! ’ Y eah, but we don’t know where these freaking votes came from.dz n hio, a udge ruled that the Republican secretary of state’s directive to allow each county only one absentee ballot drop bo was unreasonableǢ the secretary of state plans to appeal. The Trump-aligned onest lections Pro- ect is suing to block absentee ballots that arrive soon after the election but lack postmarks from being counted in innesota.
F lorida, which slapped an impossibly confusing poll tax on hundreds of thousands of ex- felons who were given the right to vote by a constitutional amendment, now wants the to investigate ichael loomberg for paying $ 1 6 million toward 3 2 ,0 0 0 e-felons’ fines and fees, almost as if restitution was never really the point.
Then there’s N orth C arolina, where the Trump campaign and state R epublican leaders have sued to block changes that make it easier for absentee voters to correct ballot deficiencies — in other words, to have their votes counted. The lawsuit came after the two R epublican members of the S tate Board of E lections resigned “in protestdz of an agreement with voting rights advocates that they’d agreed to, then said they were misled about. ȋThe meeting minutes showed they weren’t.Ȍ
The goal isn’t to win outright so much as to muddy the waters. s one of Trump’s legal advisers told The Atlantic, “ There will be a count on E lection N ight, that count will shift over time, and the results when the final count is given will be challenged as being inaccurate, fraudulent — pick your word.dz
As Trump put it last week when he refused to promise a peaceful transfer of power, “ G et rid of the ballots and you’ll have a very peaceful — there won’t be a transfer, frankly. There will be a continuation.dz
The plan is to delegitimie vote counts, challenge ballots, and clog the courts with lawsuits. ow enough chaos, and R epublican legislatures might bypass voters and directly appoint electors to the lectoral ollege. s The Atlantic story makes clear, the Trump campaign is eyeing the possibility.
This much is unambiguous: S hort of a blowout, the election is headed to court, which means the S upreme C ourt will have the final word. o is thisǣ n arrett, Trump found a ustice he thinks will get in on the fi.
E ither she understands that, or she doesn’t. ’m not sure which is worse.
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