This is yet another semantic battle the Left has won before the Right even realized it was on.
The latest talking point in the election coverage, which I’ve seen or heard in several places today, is that the Supreme Court has validated the mail-in, depot-drop, and ballot-counting procedures that have been ginned up by state courts and election-board bureaucrats. This is wrong. The Supreme Court has not validated anything. It has abdicated.
This distinction needs to be made clearly. The narrative that the Supreme Court has already authorized voting that does not comply with state election laws is just part one in a two-step scheme to enable post-election cheating: First, infiltrate as many illegal ballots as possible into the state systems; second, keep chanting that “every vote counts” and demagogue anyone who says otherwise — i.e., anyone who insists that state statutory law be followed — as “suppressing” votes, no doubt motivated by racism.
The Orwellian narrative is already being written: To call for the Constitution to be enforced is to “steal” the election.
In Pennsylvania, as I detail in a column at The Hill today, Attorney General Josh Shapiro, a Democrat, brays about having beaten the Trump campaign in court. That is only true when it comes to the state courts. And unsurprisingly so: Pennsylvania’s judges are elected, with Democrats controlling the state’s highest court. That tribunal lawlessly rewrote the legislature’s election rules in a way that would help Democrats rig the vote count, if that’s what they need to do to win.
By contrast, the only thing Shapiro has won in the U.S. Supreme Court is time. That helps Democrats politically but shouldn’t matter legally.
I have chronicled (here and here) how, in the last two weeks, the justices have not once but twice declined to hear the case. First, on October 19, Chief Justice John Roberts voted with the three liberal justices to force a 4–4 deadlock with the conservative justices who wanted to consider an injunction against the state supreme court’s rewrite of state law; in effect, this left the state court’s rewrite in effect. Second, just five days ago, the justices unanimously agreed that it was too late to expedite a ruling on the merits of the case prior to the election.
In the latter ruling, the three conservative justices most perturbed by the Court’s abdication — Justice Samuel Alito, writing for Justices Clarence Thomas and Neil Gorsuch — secured the state’s agreement to segregate the ballots submitted during the three-day extension of the submission deadline ordered by the state supreme court’s fiat. This was done to preserve the status quo ante. Justice Alito pointed out that the state court’s ruling was likely to be held unconstitutional, and that the Supreme Court maintained its discretion to grant expedited review after the election. The Court could then determine whether the ballots should be counted if they were not received by the county boards of elections until after the statutory deadline of 8:00 p.m. on Election Day (i.e. when the polls close).
To be clear, the Pennsylvania court’s post–November 3 ballot-counting ukase has not been validated. If the election is close, and those ballots could affect the outcome, there will be bitterly contested litigation — bank on it.
Pennsylvania is not the only state with a simmering election-law dispute as we reach the final hours of this most peculiar election. (There is a useful “2020 Election Litigation Tracker” at SCOTUSblog.com.) But besides being potentially decisive, it is the state that brings into sharpest relief the divide in the country, reflected in the different positions of the two parties.
As champions of “ground-up democracy,” the political Left maintains that every vote counts. Sounds noble . . . except they mean everyone should vote, no matter how uninformed people may be regarding civics and policy issues — because in identity politics, voters are just numbers, members of the herd who will vote that way provided you can just get them to fill out ballots.
More significant for present purposes, by “every vote counts,” the Left means each vote must be tallied regardless of whether the voter is lawfully qualified to vote, and regardless of whether the vote was cast within the properly enacted rules of the election. This is why Democrats fight tooth-and-nail against every proposal to require voter identification, to match signatures, to outlaw vote “harvesting,” etc. Just as the Left takes umbrage at the term “illegal alien” on the nonsensical ground that “no person is illegal” (as if there were not patent differences between legal immigration status and human dignity), they would have you accept, on a “social justice” rationale, that there can be no illegal votes in a “true democracy.”
To be sure, this is a political pose. In 2000, Democrats did not want every vote to count in Florida — much less figure into the endless recounts they demanded. They wanted every vote counted in districts believed to be bastions of support for Al Gore. Nonetheless, Democrats want to be perceived as favoring virtually universal suffrage, and to limn their conservative and Republican opposition as favoring vote suppression.
The Left also holds that the Constitution is an organic document, the literal commands of which must never inhibit progressive judges from doing “justice.”
Does the Constitution say that state legislatures are vested with the authority to set the voting rules for federal elections, subject only to Congress’s power to establish such conditions as when such elections take place? Well, yes, but for the Left, that inconvenience does not require enforcing the letter of relevant laws enacted by state legislatures if doing so would frustrate the “every vote counts” mantra. For Democrats, the task of courts is not to follow state law but to tweak it as necessary to enable voting outside the state legislature’s rules. And of course, the only things progressives may prefer to pliant courts is unelected, “expert,” “apolitical” bureaucracies — such as election boards dominated by Democrats, which presume to alter state law under the guise of administering it.
In stark contrast, the Right wants the Constitution and state laws followed. We acknowledge that every qualified voter has a right to vote within the rules established for doing so, and we would not obstruct such voters. But frankly, we are not at all bothered if ill-informed citizens who are not committed to our constitutional order choose not to vote. More to the point, we believe that if the vote tally includes ballots from voters who are not legally qualified, or ballots that are not legally cast, this unlawfully disenfranchises voters who are qualified and who follow the rules.
Conservatives thus believe it is the burden of courts, in this as in other matters, to give force to the laws as they are written, consistent with what they were publicly understood to mean when enacted. Judges do not have the authority to rewrite the laws.
But here is the rub: The political Right, particularly its Republican Party representatives, is intimidated by the Democrats’ media megaphone. Conservatives fear being seen as opposed to the nostrum that “every vote counts.” That is, the hostile media filter has convinced them that, though it is perfectly obvious that every vote should not count, they cannot make that case unscathed. “Every vote counts” is yet another semantic battle the Left has won before the right even realized it was on. And winning the semantic battle usually means winning the policy battle.
Of course, it is not suppression to oppose the counting of votes that should not count because they are not lawful. Yet Democrats succeed in putting Republicans on the defensive because Republicans do not want to be smeared as vote suppressors . . . especially when, inevitably, Democrats and the media will intimate that any effort to enforce election law as written is suppression driven by racial animus.
Look at what happened in Pennsylvania. In 2019, the state legislature enacted a bipartisan compromise bill that accommodated the Democrats’ agenda to liberalize mail-in voting and extend the time frame for submitting mail-in ballots while respecting Republican concerns about election integrity. Then this spring, when the coronavirus pandemic hit, the legislature made further accommodations on a bipartisan basis. In each round of law-making, however, the legislature retained the mandate that all ballots must be received by the county boards of elections by 8:00 p.m. on Election Day — which itself was an extension of pre-2019 Pennsylvania law, under which the deadline was 5:00 p.m. the Friday before Election Day.
To claim that enforcement of these rules, enacted by the body constitutionally designated to make such rules, is tantamount to “voter suppression” is about as spurious as it gets. As the state GOP pointed out in seeking Supreme Court intervention:
Voters can vote in person on Election Day. Voters can request and cast their mail-in ballot beginning 50 days before an election. . . . Voters can choose to wait a week before Election Day to request their ballot. . . . Voters can send their ballot via overnight mail or deliver their ballot to the county election office. . . . This is not a case where the right to vote is illusory. [Citations omitted]
Yet, as is their wont, Democrats ostensibly compromised to get Republican concessions in the legislative process but then went to court — in a state where they control the courts — to claw back their own concession on the Election Day deadline. And sure enough, they got the state supreme court not only to extend the state-law deadline for three days, but also to issue a diktat that ballots without a postmark (i.e., either unmarked or illegibly marked) are to be treated as if they were submitted on or before November 3. This manifestly invites fraud: stacks of unmarked ballots suddenly appearing days after the returns have been publicly announced, in quantities sufficient to change the result.
This sets the stage for step two of the scheme, not just in Pennsylvania but everywhere late ballots materialize. Democrats and the media will inveigh that if a vote has shown up, it should be counted. The contention that votes must be scrutinized to ensure that they were lawfully submitted will be distorted into vote suppression: The undermining of democracy by pretextual reliance on arbitrary deadlines and voter-eligibility requirements in order to disenfranchise marginalized communities — notwithstanding that actual democracy in a republic entails living under laws properly enacted by our elected representatives.
If the election is close, those calling for the laws to be enforced will be defamed as “stealing” the election while rioters turn street demonstrations violent across the country. And the Supreme Court, having failed to affirm state-legislated rules before the election, will have to make post-election rulings amid the conflagration. There are hard days ahead.