Biden Can’t Repeat Gore’s Mistake and Let the Supreme Court Overrule Democracy

HENNY RAY ABRAMS / AFP via Getty
Democratic senators should have refused to partake in the absurdly rushed effort to bring Amy Coney Barrett to the Supreme Court in the middle of the election, instead of giving the Republican partisan power a veneer of legitimacy.
But that ship has sailed and now that Justice Barrett is officially on trial, a new potential constitutional challenge looms as the GOP relies on its newly overcrowded Supreme Court majority to reinstate Trump in the White House when he suffers a tight loss in one or more swing conditions.
Now voters and Joe Biden may have to decide whether to accept an effort by the Supreme Court to decide who will sit in the White House in 2021 by preventing all properly cast ballots from being counted. Trump's second appointee to the Supreme Court, Brett Kavanaugh, openly threatened to do just that Monday, even as Trump's final addition to the court, Amy Coney Barrett, led another White House superspreader event to display their installation during the election to celebrate and to enable Trump to campaign propaganda in the process.
We have been here before - just ask Al Gore. Joe Biden and his Democratic Party must now make it clear that they will not allow the Court Conservatives to steal a second presidential election for the Republican Party. Voters should make it clear that the nation will not accept a second attempt to undermine the electoral process and thereby our democracy.
On December 8, 2000, the then right-wing majority of the Supreme Court of Justice with five judicial authorities ordered Florida to stop a nationwide recount of certain ballots ordered by the Florida Supreme Court in light of the paper-thin result of the vote in that state's presidential election, which will determine the outcome in the electoral college should. On December 12th, the same right-wing majority passed a decision that effectively passed the election to George W. Bush, effectively preventing the recount from completing, thereby preventing the nation from knowing which candidate actually received the most votes would have.
The argument of the majority in Bush against Gore was so embarrassingly weak and transparently partisan that the opinion openly warned the lower courts not to rely on it in future cases. This is unique.
Many wondered why Al Gore would accept the literally anti-democratic result ordered by the court - and urged voters to join in. But by the time the judges made it their business to hand over the presidency to their preferred candidate, it was too late. Gore had chosen to participate in the Supreme Court litigation, admitting that the five right-wing judges had power to rule on the election, even if it meant not all votes could be counted.
Indeed, under the circumstances, Gore's decision to actively participate in the Florida Supreme Court's challenge to the vote count had been sensible. At the time, few could have expected that a majority of Supreme Court justices, regardless of their political preferences, would ultimately use their unelected positions to so brazenly undermine democracy and thereby undermine the legitimacy of the court itself. After getting away with their bold move in 2000 to undermine elections and suppress votes, they have since become increasingly important to the GOP game book to maintain power as the party's electoral base ages and shrinks.
Indeed, the full Supreme Court and lower federal appeals courts have proven to be keys to this strategy, even over the past few weeks as they have increasingly ruled in favor of strategies to suppress GOP votes.
Unlike in 2000, there is therefore little doubt what the Supreme Court will do if it receives a controversial election. There are now all indications that the GOP is planning a sequel to Bush versus Gore with a lead role for Justice Amy Coney Barrett, who has openly asked Trump to stand ready to step in on his behalf.
In fact, four of the five members of the five-man reactionary majority before Barrett have already more than indicated that they are ready to do just that. Last week the court passed one vote less than an emergency stay on a Pennsylvania Supreme Court ruling that upheld voters' right to vote until Election Day but retained it until November 6th. The Pennsylvania State Court's decision was based on the Pennsylvania State Constitution, and it is established that the highest court of any state - not the US Supreme Court - has the final say in interpreting that state's constitution and laws.
The rationale behind the decision is a novel and frankly absurd argument put forward by the GOP (and vaguely heralded by Justice Rehnquist in a Bush v. Gore statement, only approved by three judges) because of the US Constitution This specifies. Since the state "legislators" determine the "times, places and manner" of the federal election, it is implicitly forbidden for state courts to interpret state constitutions in a way that deviates from the literal meaning of these laws, including the Promote voter access to elections. Conservatives claim to support the interpretation of the Constitution in accordance with their original understanding, and there is no reason to believe that the authors intended to cut the state courts out of the business of interpreting state electoral law by using the term "legislature" used this way.
The 4-4 Supreme Court vote against a postponement of the Pennsylvania Supreme Court decision was not accompanied by a statement. Nonetheless, four members of the court seem to have expressed sympathy for the GOP argument by their votes alone, and although the court has refused emergency stay, it remains free to reopen the case. Indeed, Judges Kavanaugh and Gorsuch expressly embraced this radical theory when Kavanaugh stated that “a state court cannot deviate from state elections because a separate agreement in a Monday night decision extended the deadline for receiving postal ballot papers Wisconsin Announced Legislative Code. "
Furthermore, there is every reason to believe that the newly minted Judge Barrett is willing to join the position of the other four far-right judges, possibly by instructing Pennsylvania not to count postal ballots received after election day (which most likely favor Biden). although doing so will be against the constitution of the state. In anticipation of the new judiciary that will favor its position, the GOP has already tabled a series of new papers asking the court to take up the merits of the Pennsylvania case before election day.
Those hoping to revive the challenge to the Pennsylvania Court decision had reason to be encouraged by Monday night's Supreme Court ruling denying a court order that Wisconsin sent those by Election Day but within six days must count the ballots received. In his opinion, which justified the action of the Supreme Court, Kavanaugh adopted Trump's mendacious rhetoric about the supposedly inherently suspicious nature of postal ballot papers, referring to the "chaos and suspicion of inappropriateness that can arise when thousands of postal ballots are poured in after election day and possibly the election turn around election results. However, as Judge Kagan stated differently, "there are no results that can be" flipped "until all valid votes are counted," and there is nothing "chaotic" or "suspicious" about any ballot executed and sent before election day to count.
The potential rerun of the Pennsylvania case, which will affect the potential count of late ballots in other states, is just one of several moves the GOP may attempt to reinstall Trump in front of a waiting, right-wing Supreme Court majority. when the opportunity presents itself.
So what can the majority of the electoral public, whose majority (once again) almost certainly will vote against Trump, do to prevent democracy from being undermined again as overtly as this? Some of the steps that may be necessary are obvious and worrying. others may be more difficult to accept, but could prove essential to upholding the nation's democracy.
First and foremost, democratic voters must vote in sufficient numbers in order not only to win in swing states, but also to win decisively. The millions of dollars the GOP spent on pre-election pre-election litigation has not only focused on winning the election for Trump, which is highly unlikely given Trump's position in the US right now, but polls also to keep the margins of a Biden victory as tight as possible. This is because the GOP will only be able to take the election to court if, as in 2000, the number of votes in one or more states that can determine the outcome in the electoral college is very close.
Accordingly, as Greg Sargent noted, the GOP's hopes of undermining democracy in court could "end with a relative whimper" if the number of votes, especially the early-reported number, is critical to Biden - an outcome that is increasingly likely appears (although not certain).
Second, people must be willing to take to the streets to make it clear that another judicial attempt to undermine democracy will simply not be accepted by the majority of the country's citizens.
It is possible that after polling day we will have a contest with Biden on his way to victory once all of the votes are counted, including those that were posted but not counted in a state like Pennsylvania. In these circumstances, the GOP can play its game for Supreme Court intervention in the form of a preventive stay that threatens to invalidate all or part of the number of votes, such as the stay that Bush received in 2000.
In the face of such GOP appeals to the court, citizens must take to the streets in large numbers to demand that every vote be counted and make it clear that repetition of judicial intervention to prevent democracy will neither be tolerated nor accepted.
If the court receives the strong message that another attempt to send an unelected president to office will not only be rejected by the majority of citizens, but also that the legitimacy and authority of the court could be severely damaged some members of the reactionary majority in the court may choose to step down on the sidelines and refuse to vote again in a presidential election.
If the court majority makes the reckless decision to attempt a GOP attempt to undermine the vote, Joe Biden must make a potentially important decision: whether to accept the court's authority to do so. He shouldn't.
If the court takes up a GOP challenge in order to count potentially decisive votes post-election in a swing state, Biden should refuse to participate in the lawsuit, ultimately questioning the court's authority and legitimacy in selecting the president .
Critics could argue that taking such a dramatic move could make Biden lose his chance to prevail in the Supreme Court.
Unlike in 2000, however, there is little reason to doubt the likely outcome if the court accepts a case that could ultimately determine the election result. If five or six of the court's right-wing judges decide to get the court to intervene, they will almost certainly ultimately vote in favor of reinstalling Trump as well, no matter how difficult the legal reasons that may be required to get that outcome to achieve. Accordingly, Biden will not forego much by refusing to attend.
Others will argue that a decision by Biden to challenge the Supreme Court's authority directly will spark a constitutional crisis. But that brings the situation back; It is the reactionary judges of the GOP and the Supreme Court that have brought the nation to the brink of such a crisis, and it will bring the nation over the edge if they try to install another president who may not have won the election .
Hence, a decision by Biden not to accept intervention by the Supreme Court to thwart the counting of citizens' votes would not undermine the constitutional order. On the contrary, it would avoid adding an undeserved veneer of legitimacy to an undue challenge to democracy, thereby avoiding repetition of the mistaken decision by the Democratic senators to attend the confirmation hearings of Coney Barrett, which were equally undeserved at this trial Appearance given the regularity.
Indeed, defying the right-wing majority in the Supreme Court and refusing to recognize its authority to reinstall Trump may prove to be the only means of preserving our democracy in the end.
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In this article
Election Center 2020
Joe Biden
Al Gore
Amy Coney Barrett
Brett Kavanaugh

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