Voting Election 2020 GIF by INTO ACTION

Yesterday, the Supreme Court jumped in to say that Wisconsin could not count any ballots that arrive after Election Day. During a deadly pandemic. That is getting worse in the state every day. And is suffering severe postal delays.

But don't worry — that wasn't even the worst part!

The worst part is that the decision, in DNC v. Wisconsin State Legislature, confirmed some of my worst fears: The Supreme Court is preparing itself to fix the election for Donald fucking Trump.

This is one of those times when I really fucking hate being right.


At issue was whether to reinstate a court-ordered extension for receiving absentee ballots in Wisconsin. Although Wisconsin law requires absentee ballots to be received by Election Day, after extensive fact-finding, the federal district court found that the pandemic and current mail delays would lead to massive voter disenfranchisement without court intervention.

But, as we all know, the Roberts Court just hates itself some voting rights, so here we are.

But the most terrifying part isn't even the fact that as many as 100,000 ballots (more than four times the margin of Trump's win in 2016) might not be counted in this must-win state. It's that Justices Kegstand and Gorsuch made their intentions to ratfuck the election incredibly clear.

Justice Kavanaugh's concurrence is truly terrifying, preparing for the eventuality that our new and improved 6-3 Supreme Court will intervene in order to declare Donald fucking Trump the victor.

Most of his concurrence followed the same threads as the other Republicans; complaints that the district court had intervened too close to the election, that state law said the ballots had to arrive by Election Day and the legislature could have changed that law and didn't.

Kegs makes arguments that any high schooler could easily refute in debate class, like comparing absentee ballots arriving late due to the federal government fucking up the mail to "[v]oters who [...] show up to vote at midnight after the polls close." But that's just the sort of brilliant, nuanced take we have quickly come to expect from him. And it's nothing compared to what comes next.

In order to clear the way to step in and steal the election for Trump Justice Kavanaugh lamented that it's more important to have an answer on Election Day than to actually count the votes.

For important reasons, most States, including Wisconsin, require absentee ballots to be received by election day, not just mailed by election day. Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election. And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter. Moreover, particularly in a Presidential election, counting all the votes quickly can help the State promptly resolve any disputes, address any need for recounts, and begin the process of canvassing and certifying the election results in an expeditious manner. [...] [L]ate-arriving ballots open up one of the greatest risks of what might, in our era of hyperpolarized political parties and existential politics, destabilize the election result. If the apparent winner the morning after the election ends up losing due to late-arriving ballots, charges of a rigged election could explode. (internal citation marks and quotations omitted)

Because fuck the will of the people.

Va te faire foutre.

As noted in Slate,

It is genuinely alarming that the justice cast these aspersions on late-arriving ballots. In at least 18 states and the District of Columbia, election officials do count ballots that arrive after Election Day. And, in these states, there is no result to "flip" because there is no result to overturn until all valid ballots are counted. Further, George W. Bush's 2000 election legal team -- which included Barrett, Kavanaugh, and Roberts -- argued during that contested election ballots arriving late and without postmarks, which were thought to benefit Bush, must be counted in Florida.

And as noted all over Twitter, Justice Kegs was ... surprise ... sloppy as fuck.

But the real kicker comes in Footnote 1. In a fucking footnote, this blowhard endorses an argument made by William Rehnquist in 2000 that the other Bush v. Gore justices deemed too extreme when handing the election to George W. Bush. In that case, the then-Chief Justice wrote separately to say that the Supreme Court should have gone even further than just stealing the election, and declared that SCOTUS can jump in to stop state courts from determining what their own state constitutions mean.

Kegs writes:

[U]nder the U.S. Constitution, the state courts do not have a blank check to rewrite state election laws for federal elections. Article II expressly provides that the rules for Presidential elections are established by the States "in such Manner as the Legislature thereof may direct." The text of Article II means that "the clearly expressed intent of the legislature must prevail" and that a state court may not depart from the state election code enacted by the legislature. Bush v. Gore, 531 U. S. 98, 120 (2000) (Rehnquist, C. J., concurring). [...] In a Presidential election, in other words, a state court's "significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question." Bush v. Gore, 531 U. S., at 113 (Rehnquist, C. J., concurring). As Chief Justice Rehnquist explained in Bush v. Gore, the important federal judicial role in reviewing state-court decisions about state law in a federal Presidential election "does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures. To attach definitive weight to the pronouncement of a state court, when the very question at issue is whether the court has actually departed from the statutory meaning, would be to abdicate our responsibility to enforce the explicit requirements of Article II."

This is absolutely fucking bonkers. Even when SCOTUS was ensuring it had stolen the 2000 election, it didn't want to go that far. This would give the Supreme Court the power to overrule any reasonable measures state courts take to enforce their election laws that the Court doesn't like. The whole reason elections are handled at the state and local level is to avoid an autocratic federal government ratfucking the rules.

Trump appointee and bootlicker Neil Gorsuch also seemed to endorse this reading of the US Constitution, writing that it "provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules." And Justices Crazypants Thomas and Squirrelly Alito have never seen a Republican ratfuck they didn't approve of. Add Amy Bony Carrot to the mix and even without John Roberts, the lunatics running the asylum almost certainly have the votes to declare that they have an Article II that says they can do whatever they want.

That was, after all, the entire point of holding the Senate vote before the election instead of just confirming Coney Barrett after the election had happened. A lot of conservative fuckwads got out to vote for Trump in 2016 because they wanted Scalia's seat, and the GOP could have used the same tactic to try to win over reluctant Trump voters again. But they wanted to make sure the fix was in.

And as Justice Elena Kagan (joined by Justices Stephen Breyer and Sonia Sotomayor) pointed out in her dissent:

It is hard to see how the extension of a ballot-receipt deadline could confuse citizens about how to vote: At worst, a voter not informed of the new deadline would (if she could) put her ballot in the mail a few days earlier than needed. Nor would that measure discourage Wisconsin citizens from exercising their right to the franchise. To the contrary, it would prevent the State from throwing away the votes of people actively participating in the democratic process. And what will undermine the "integrity" of that process is not the counting but instead the discarding of timely cast ballots that, because of pandemic conditions, arrive a bit after Election Day. On the scales of both constitutional justice and electoral accuracy, protecting the right to vote in a health crisis outweighs conforming to a deadline created in safer days.

It's bad. It's all bad. During Wisconsin's April primary, 80,000 ballots were counted because court intervention allowed the state to count ballots received after the scheduled election date. In 2016, Donald Trump won Wisconsin by less than 23,000 votes. And as noted liberal shill the Wall Street Journal noted this week, Wisconsin currently has some of the largest mail delays in the country. Not to mention the fact that COVID-19 is currently much worse in Wisconsin now than it was in the spring.

I've said it before and I'll say it again: The only way we can win this thing is to get out the vote in such huge numbers that this election is ratfuck-proof.

Please. Vote.

And if you're voting absentee in Wisconsin, please drop your ballot off at your city clerk or a dropbox instead of relying on the mail. If you've already mailed in your ballot, you can check its status at https://myvote.wi.gov/en-US/TrackMyBallot.

Barack Obama saying "Don't boo, vote!"


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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.
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