Delta Air Lines and Coca-Cola, two of Atlanta's biggest brands, are facing consumer boycott threats after Georgia Gov. Brian Kemp signed new voting restrictions into law last week. Social media posts carrying the hashtags #BoycottDelta, #BoycottDeltaAirlines and #BoycottCocaCola proliferated on Twitter as critics of the Republican-backed legislation accused the two Atlanta-based companies of not having done enough to stop its passage. While voting rights advocates called for companies to condemn the Republican initiative in recent weeks, Delta issued carefully worded statements on the importan...
ATLANTA — Georgia Lt. Gov. Geoff Duncan further distanced himself from many in his party’s conservative base on Sunday in a "Meet the Press" interview when he blasted proposed election restrictions as “solutions in search of a problem” and sharpened his criticism of former President Donald Trump. The first-term Republican also shut the door on a potential 2022 challenge to U.S. Sen. Raphael Warnock, saying he would “stay focused on being the lieutenant governor here in Georgia — and we’re going to focus hard on trying to rebuild this party and refocus GOP 2.0.” Duncan is part of a triumvirate ...
Reprinted with permission from American Independent
Rep. Lauren Boebert (R-CO) wants to strip a voting rights bill of a key provision that expands access to voting by mail — the very same voting method her state exclusively uses in conducting its elections.
Boebert filed an amendment to HR 1, the "For the People Act of 2021," that would expand access to the ballot in federal elections.
The provision Boebert wants stricken states: "If an individual in a State is eligible to cast a vote in an election for Federal office, the State may not impose any additional conditions or requirements on the eligibility of the individual to cast the vote in such election by absentee ballot by mail."
Colorado has been voting entirely by mail since 2013. Boebert — who has not raised any doubts about the legitimacy of her own victory in 2020 — was elected in 2020 entirely by absentee ballots.
But throughout her campaign, Boebert spread Donald Trump's lies that voting by mail was prone to fraud and has been pushing for restrictions to voting by mail.
"The 'For The Swamp' Act, HR 1, will make permanent law out of the mail-in ballots that we saw turn the 2020 election into an absolute mess," Boebert tweeted on Feb. 18. "The new norm will be waiting days & weeks for elections to be called — and even then who can be sure of the results given mail-in fraud."
Repeated investigations into the 2020 election have demonstrated that it was not marred by fraud.
Even William Barr, who served as Trump's attorney general, said as much.
Boebert's was one of the loudest voices pushing Trump's baseless claim that the 2020 election was stolen, helping to incite the Jan. 6 riot at the U.S. Capitol by Trump supporters who sought to block President Joe Biden's win from being certified.
Now Boebert is using lies about voter fraud to make it harder to vote.
Her amendment is one of a number from Republicans seeking to water down HR 1's intended goal of expanding access to the ballot.
The amendments will almost certainly not be added to the bill in the Democratic-controlled House of Representatives.
The bill is slated to come up for a vote in early March and is expected to pass in the House.
However, it's unlikely HR 1 will make it to Biden's desk under current rules, with Senate Republicans likely to block it using the filibuster.
Published with permission of The American Independent Foundation.
Reprinted with permission from American Independent
Weeks after losing her special election, former Sen. Kelly Loeffler (R-GA) is back — hoping to suppress the vote, and maybe even get her seat back.
Loeffler, who says she's considering another run in 2022, told the Atlanta Journal-Constitution on Monday that she is launching a political group called Greater Georgia to help elect Republicans in future elections.
Loeffler, who was appointed to a vacant Senate seat in December 2019, lost a runoff in January to Democrat Raphael Warnock, the senior pastor at the historic Ebenezer Baptist Church in Atlanta. Warnock, the first Black person to represent Georgia in the Senate, will be up for reelection next November.
After saying a 2022 rematch against Warnock is "certainly on the table," Loeffler said she is starting this new organization because she does not "know if any Republican can win if we don't shore up what we're doing around voter registration, engagement and election integrity."
She plans to do this, she claimed, by trying to make the Georgia GOP "a bigger tent" and protecting "election integrity" by making it harder to vote.
The group's website uses coded language to explain its voter suppression intent, talking about how voters must have "confidence in the process," through "election transparency & uniformity."
Loeffler endorsed Republican efforts to overturn the 2020 presidential election results, citing "real concerns" about how the election "was conducted" — despite a total lack of evidence of any widespread issues — though a day after losing her seat, she said she could not "in good conscience" help Donald Trump steal the election.
Though President Joe Biden carried Georgia in November, and Warnock and Sen. Jon Ossoff (D) swept two runoffs last month, Republicans are already pushing to change state laws to prevent Democrats from ever winning again.
Loeffler's claim that she will work to promote "big tent" GOP proposals hardly matches her record during her brief Senate tenure.
She boasted of voting with Trump 100 percent of the time and being "more conservative than Attila the Hun," a brutal killer not known for his inclusive policies.
She pandered to white supremacists and made overtly racist attacks against Warnock. She ran ads featuring Trump using racist terminology to describe the coronavirus, took a selfie with a well-known former Ku Klux Klan leader, and railed against the Black Lives Matter movement.
She also attacked Warnock's religious beliefs, even bashing him for quoting the Bible. "[Warnock's] repeated use of the Bible & his pulpit to justify abortion-on-demand is sickening & wrong," she tweeted in December.
Even if Loeffler runs, she might not have a clear shot at her party's nomination.
Republican ex-Sen. David Perdue, who lost the other Senate seat to Ossoff after allegations of insider trading, and ex-Rep. Doug Collins, who failed to make the runoff against Warnock and Loeffler, are both considering bids.
Published with permission of The American Independent Foundation.
Reprinted with permission from Alternet
President Donald Trump's campaign continues to come up short in its post-election legal battle, observers are mulling over ways to go after the president, his campaign, and Republican Party's efforts to suppress votes.
In an editorial published by The Bulwark, Section 1985(3) of the Ku Klux Klan Act of 1871 is being highlighted as a possible vector of legal consequence for Trump's actions.
The law, passed by Congress, aimed to enforce consequences for voter suppression and intimidation by giving voters the right to sue those "who, motivated by race, conspire...for the purpose of preventing or hindering the constituted authorities of any State...from giving... to all persons within such State... the equal protection of the laws; or... to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy... in favor of the election of any lawfully qualified person as an elector for President."
While the publication specifies that Trump's post-election legal challenges, alone, would not be enough to support Section 1985(3) claims, actions taken by the Trump campaign "'[hinder] the constituted authorities' of the states in order to disqualify presidential votes in disproportionately Black jurisdictions such as Philadelphia (42.3 percent Black), Detroit (78.6 percent), Atlanta (51.8 percent), and Milwaukee (38.8 percent). Black voters in these jurisdictions can bring lawsuit."
The publication outlined the process of voter certification. After all votes are counted and resolutions have been reached for court challenges, state and local officials are required to certify votes. Any form of interference, at this point, can likely be classified as a form of interference.
The state of Michigan was used an example of interference as it was noted that the Trump campaign has gone "beyond 'hindering' to 'intimidation' and 'threat.'"
A Republican member of the Wayne County Board of Canvassers initially advocated denying certification for Detroit ballots, but not those from whiter cities. Both Republican members then voted against certification (deadlocking the board), before later reversing themselves. Then, after a call from President Trump, they sought to rescind their votes to certify. Next, Republican National Committee Chairwoman Ronna McDaniel and Michigan GOP Chair Laura Cox asked to delay state certification for 14 days, which would bump up against the December 7 statutory certification deadline. There have also been requests to disqualify huge numbers of Wisconsin ballots and do a second Georgia recount.
Defendants accused of violating Section 1985(3) typically face "joint and several liability for damages," which means Trump could, subsequently be held liable for his own actions and the actions of his campaign.
Reprinted with permission from ProPublica
Donald Trump Jr. looked straight into a camera at the end of September as triumphant music rose in a crescendo. “The radical left are laying the groundwork to steal this election from my father," he said. “We cannot let that happen. We need every able-bodied man and woman to join the army for Trump's election security operation."
It was an echo of what his father, President Donald Trump, has said in both of his presidential campaigns. At a September campaign rally in Winston-Salem, North Carolina, the president encouraged his audience to be poll watchers. “Watch all the thieving and stealing and robbing they do," he said. “Because this is important."
But the poll-watching army that the Trumps have tried to rally hasn't materialized. Although there's no official data, election officials across the country say that they have seen relatively few Republican poll watchers during early voting, and that at times Democratic poll watchers have outnumbered the GOP's. In Colorado and Nevada, where the Trump campaign was particularly active in recruiting poll watchers, its efforts largely petered out.
Jordan Fuchs, the deputy secretary of state in Georgia, a swing state experiencing a record voter turnout, said both county governments and political parties can supply poll watchers in Georgia. Most are showing up in Fulton County, whose seat is Atlanta.
“I am receiving reports of a few thousand poll watchers from a variety of left-leaning groups. There are very few poll watchers from right-leaning groups," she said. “The Trump campaign is simply calling for additional poll watchers because they know there is a dearth of right-leaning poll watchers."
Although Kentucky election law doesn't allow for poll watchers, the parties can have registered “challengers" at the polls on Election Day whose only job is to challenge a voter's eligibility. In Fayette County, home of Lexington, Republicans have submitted only seven names of challengers while Democrats have submitted 117. Don Blevins Jr., the clerk in the county, says he doesn't know how many will actually show up on Tuesday.
“Only in recent years have campaigns thought about doing this, and then rarely followed through," he said.
In Williamson County, Texas, a swing county just north of Austin, election administrator Christopher Davis said that the few poll watchers there were mostly sent by a local conservative activist who promotes unfounded claims of voter fraud. When the county opened up its central count office this past weekend to process mailed ballots, only one poll watcher showed. The watcher, Davis said, was from the Trump campaign and behaved according to the rules.
“Maybe we're just lucky in WilCo," Davis said.
Several Trump supporters in Arizona said they volunteered to be poll watchers, but there was no follow-up. “I actually signed up twice because I never heard from them. I never was contacted, and I signed up almost two months ago," said Lynne Berreman, who lives in Phoenix. “Hopefully it's because they already have enough people."
A late October lawsuit by Nevada's Republican Party tacitly acknowledged that the GOP's poll watching operation there was ineffective. The party sued Clark County, home of Las Vegas, in an effort to stop the counting of mail-in ballots until “meaningful observation" was allowed. The suit alleged that poll watchers were not allowed to be close enough to the counting process to do their jobs. A state court judge denied the request for a temporary injunction hours after it was filed.
Despite the small number of official poll watchers, unauthorized Trump supporters at times have shown up and behaved aggressively at polling places and drop boxes, according to tips received by Electionland.
The Trump campaign did not respond to requests for comment.
The paucity of Republican poll watchers doesn't necessarily reflect a lack of enthusiasm for the candidate. In fact, avid supporters may prefer more vocal or demonstrative ways of expressing their views than watching polls all day. Trump's cries for help in the prevention of fraud make the poll watcher's role seem far more dramatic and consequential than it actually is. More than 20 Trump campaign training videos for poll watchers, reviewed by ProPublica, make clear the mundane nature of the task, encouraging volunteers to be on time, to bring a water bottle, to not interact with voters and to be respectful “even to our Democratic friends!"
Poll watching “is like watching paint dry," said Justin Levitt, a professor at Loyola Law School in Los Angeles, specializing in elections. “If you're waiting for the busloads of fraud to arise, and what you get is small American-flag-waving democracy, you begin to go out of your head. It's like sitting in a field waiting for the UFOs and the UFOs never show up. And then you're just sitting in a field, which is fine for a couple hours, but polls are open about 15 hours a day."
Analysts say that the president and his staff may not believe their own predictions of a poll-watching army, but that they may be raising the specter to deter Democratic voters from going to the polls. The campaigns also want people to sign up to be poll watchers, even if they don't actually follow through, because their contact information helps identify potential donors.
Bob Bauer, the attorney for the campaign of former Vice President Joe Biden, said the Trump campaign is betting on scaring voters into staying home to avoid confrontation. But, he said, that tactic appears to have backfired, as young people and other likely Democratic voters have flocked to the polls during early voting.
Democrats have their own poll-watching strategy, according to campaign insiders. They encourage volunteers to watch not only voters but also Republican poll watchers, and to be on the lookout for any GOP effort to intimidate voters or challenge them without justification.
Poll watchers are common in American democracy and have been a fixture of precincts since the 1800s. In the vast majority of states, the parties or the campaigns are allowed to send trained watchers to each precinct. Poll watchers largely sit silently, taking notes on anything out of the ordinary to report to the party or campaign attorneys. Their job is not to intervene but to observe and serve as witnesses for court cases or challenges if they observe something illegal or inappropriate, said Ben Ginsberg, one of the most well-known Republican election attorneys. Most often, poll watchers report nothing.
This isn't the first Republican campaign with a lot of talk about poll watchers but little action. In 2016, Trump adviser Roger Stone mounted a last-ditch effort only days before Election Day while Trump was down in the polls and threatening not to accept the results of the election. Stone had pledged to recruit 3,000 hand-selected volunteers in a list of cities, but few showed up.
By text, Stone said that his efforts in 2016 were not poll watching but exit polling to ensure the legitimacy of the count and were “entirely independent of the Trump campaign." Litigation lodged by Democratic groups, portraying the effort as a veiled attempt to intimidate voters, hurt his ability to recruit in large numbers, he said.
“Unfortunately defending against extensive litigation and our legal victories sapped our resources so that the number of exit polls conducted fell far below what we had hoped to achieve," he said. Federal courts ultimately ruled that the effort did not constitute voter suppression or intimidation.
Stone was convicted and sentenced to prison time in February for lying to Congress and witness tampering during the House investigation into Russian activity in the 2016 election. In July, the president commuted his sentence and he was released.
In 2008, the conservative group True the Vote, which promotes unfounded allegations of voter fraud, sent hundreds of volunteers to minority neighborhoods around Houston, where the organization is headquartered. In the 2010 midterms, it pledged to mobilize thousands of people to serve as poll watchers. Between 2010 and 2012, True the Vote chapters opened across the country and the organization began preparing a national recruitment effort.
But what happened?
“Long, sad trombone sound," Levitt said. While a few people showed up, and some counties had a larger presence than others, the campaign largely fizzled. “It was nowhere near the all-caps nightmare that it was reportedly supposed to be." True the Vote did not respond to a request for comment.
In 1982, after the New Jersey GOP sent off-duty law enforcement officers to watch voting, the state's Republican Party and the Republican National Committee entered into a consent decree barring them from “ballot security" initiatives. North Carolina's Republican Party was added to the consent decree in 1990. All three parties were released from the consent decree in 2018, raising concerns that the intimidating behavior would start anew. But so far it hasn't.
Every state has different rules for poll watching, though some form of it is generally allowed. In general, parties or candidates register watchers with the county. Volunteers generally must pay their own way to the polling location, and they must be trained and present proof of that training at the polls, where their behavior is intensely restricted. They generally cannot be on their phone, speak to voters or engage in any way with the process, or they may be removed from the polling location.
The result, poll workers say, is rampant boredom. “It was just a really long day," said Zachary Brown, who served as a vote challenger — the equivalent of a poll watcher in Michigan — in Pontiac in 2012 for the conservative group Protecting Michigan Taxpayers. Brown said he saw nothing out of the ordinary. The determination behind the campaign to fish out fraud when there was none was “disheartening," he said, and it led him to turn away from the conservative movement. He hasn't been a poll watcher since and considers himself an independent politically. “All I saw were people voting," he said.
The Trump campaign's poll-watcher efforts this year were more centralized than normal in Colorado, where state Election Day operations manager Joe Samudio took over the task from county party chairs of appointing poll watchers during early voting and on Election Day. Samudio seemed successful in recruiting volunteers but then was reassigned to Minnesota, leaving the program in limbo. Although Colorado sends mail-in ballots to all voters, it also has numerous locations for in-person voting. Poll watchers also can observe counting of ballots whether they're mailed in or cast in person. Samudio did not respond to emailed requests for comment.
“He had all these people and then suddenly he was sent to Minnesota and I didn't hear from anyone else for several days," said Peg Perl, the election director for Arapahoe County in Colorado. She said she did not recall seeing or hearing of any Republican poll watchers during the first week of early voting, while some Democratic poll watchers did show up.
Colorado GOP spokesman Joe Jackson said that the party is currently dispatching watchers in all major counties.
The Trump campaign's frustration over poll watching has boiled over in Nevada. In an early October poll watcher training in Las Vegas, Jesse Law, the Trump campaign's Election Day operations manager, complained to online and in-person trainees that Democratic poll watchers can “get away with anything" but Republicans are heavily watched.
Democrats were there not to ensure the integrity of the vote, as his volunteers would be, but to watch Republicans, Law said in a video obtained by ProPublica. “The problem with the Democrats being at these locations … is they are sent here to destroy your life," he said, saying that they would “make up that we are suppressing the vote."
“They are there to know everything that's on your phone, everything you're writing down, everything about you," he said, looking around the room. Law did not respond to an email asking for comment.
Law emphasized that trainees should not break the law and give Democrats ammunition to use against Trump (whom he called “the boss") in court. “If you are over here going 'that person isn't legal' and that person is completely legal, that's a black eye for us. Don't do that," he said. “If you are seeing a problem, document it, talk to an attorney about it, and let's get to the bottom of it — no spectacles please!"
By Jolie McCullough, The Texas Tribune
A legal cloud hanging over nearly 127,000 votes already cast in Harris County was at least temporarily lifted Sunday when the Texas Supreme Court rejected a request by several conservative Republican activists and candidates to preemptively throw out early balloting from drive-thru polling sites in the state's most populous, and largely Democratic, county.
The all-Republican court denied the request without an order or opinion, as justices did last month in a similar lawsuit brought by some of the same plaintiffs.
The Republican plaintiffs, however, are pursuing a similar lawsuit in federal court, hoping to get the votes thrown out by arguing that drive-thru voting violates the U.S. constitution. A hearing in that case is set for Monday morning in a Houston-based federal district court, one day before Election Day. A rejection of the votes would constitute a monumental disenfranchisement of voters — drive-thru ballots account for about 10% of all in-person ballots cast during early voting in Harris County.
After testing the approach during the July primary runoff with little controversy, Harris County, home to Houston, set up 10 drive-thru centers for the fall election to make early voting easier for people concerned about entering polling places during the pandemic. Voters pull up in their cars and, after their registrations and identifications have been confirmed by poll workers, are handed an electronic tablet through their car windows to cast ballots.
In a last-minute filing to the Supreme Court, litigious conservative Steven Hotze and Harris County Republicans state Rep. Steve Toth, congressional candidate Wendell Champion and judicial candidate Sharon Hemphill sought to have the votes declared illegal. They argued that the drive-thru program was an expansion of curbside voting and under state election law should only be available for voters with disabilities. The same argument had been made in an unsuccessful previous legal challenge from Hotze and Hemphill — along with the Harris County Republican Party — filed at the state Supreme Court hours before early voting began.
Curbside voting, long available under Texas election law, requires workers at every polling place to deliver onsite curbside ballots to voters who are "physically unable to enter the polling place without personal assistance or likelihood of injuring the voter's health." Posted signs at polling sites notify voters to ring a bell, call a number or honk to request curbside assistance.
The Harris County Clerk's Office argued that its drive-thru locations are separate polling places, distinct from attached curbside spots, and therefore can be available to all voters. The clerk's filing with the Supreme Court in the earlier lawsuit also said the Texas secretary of state's office had approved of drive-thru voting. Keith Ingram, the state's chief election official, said in a court hearing last month in another lawsuit that drive-thru voting is "a creative approach that is probably okay legally," according to court transcripts.
Plus, the county argued in a Friday filing that Texas' election code, along with court rulings, have determined that even if the drive-thru locations are violations, votes cast there are still valid.
"More than a century of Texas case law requires that votes be counted even if election official[s] violate directory election laws," the filing said.
The challenge was the latest in a flurry of lawsuits on Texas voting procedures filed in recent months, with Democrats and voting rights groups pushing for expanded voting access in the pandemic and Republicans seeking to limit voting options. In this case, the lawsuit filed Tuesday asked the state Supreme Court to close Harris County's 10 new drive-thru polling places and not count votes that had been cast at them during early voting.
The court has recently ruled against other last-minute challenges on voting access by noting that the cases were filed too late and that changes to voting procedure during an election would sow voter confusion.
Since the first Republican challenge to drive-thru voting was filed on Oct. 12, the Texas secretary of state and Gov. Greg Abbott had both ignored requests from reporters and Harris County officials to clarify their positions on whether the process was legal. Republican Texas Attorney General Ken Paxton sent a letter to all local election officials claiming that most voters can't legally vote at drive-thru locations, fueling speculation that the all-Republican Supreme Court would use the case to invalidate ballots already cast. The court rejected the case the next week, with a lone dissent from Justice John Devine.
The new challenge by Republicans again asked the court to reject drive-thru voting as an illegal expansion of curbside voting, and went further by also asking the court to issue an order rejecting votes already cast.
"Unless stopped, illegal votes will be cast and counted in direct violation of the Texas Election Code and the United States Constitution and result in the integrity of elections in Harris County being compromised," the petition to the court said.
The county clerk's office countered that the first challenge to drive-thru voting had already been denied, and the second filing came much too late.
"Hotze filed a petition contesting drive thru locations on the third day of early voting which this Court already denied," the clerk's Friday filing said. "He filed this second petition two and a half weeks into early voting, six days before Election Day, and after fifty percent of registered voters have already voted."
The tens of thousands of votes are still in flux, however, as the federal courts now weigh the issue. Hotze and the others asked the district court this week to toss the votes, arguing the county's implementation of drive-thru voting violates the U.S. Constitution. The campaign of Texas' Democratic U.S. Senate candidate, MJ Hegar, along with national Democratic campaign groups have asked to intervene in the lawsuit — following a national trend in Republican-led fights against voting expansions during the tumultuous election.
Disclosure: The Texas secretary of state has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.
This article originally appeared in The Texas Tribune at https://www.texastribune.org/2020/11/01/texas-drive-thru-votes-harris-county/.
Reprinted with permission from Alternet
In yet another disturbing U.S. Supreme Court decision, three conservative justices signed on to an opinion clearly suggesting they're open to arguments that might invalidate some Pennsylvania ballots after the election.
To understand what's going on, let's start with the positive news. The court as a whole rejected a plea from Republicans to reconsider a case in which the Pennsylvania Supreme Court extended the deadline for mail-in ballots received three days after Election Day, as long as they're postmarked by Nov. 3 (or the postmark is absent or unclear). The court had already declined to involve itself on the issue in a 4-4 split decision, leaving the state court's extension in place.
Newly confirmed Justice Amy Coney Barrett, whose nomination was not yet complete at the time of the previous decision, recused herself from the latest case. According to the Supreme Court's Public Information Office: "Justice Barrett did not participate in the consideration of this motion because of the need for a prompt resolution of it and because she has not had time to fully review the parties' filings."
But while the Supreme Court did not take up the case again, Justice Samuel Alito, one of the court's staunch conservatives, wrote a statement making it clear that he objected to the state court's extension and desperately wanted to overturn it. He also made clear that he would be open to reconsidering the issue after the election — that is, he would be open to throwing out at any mail-in ballots received and counted after Election Day in Pennsylvania, despite the fact that they would be cast and counted in accordance with the rules as they are. Justices Neil Gorsuch and Clarence Thomas signed on to Alito's statement.
"[The] Court's denial of the motion to expedite is not a denial of a request for this Court to order that ballots received after election day be segregated so that if the State Supreme Court's decision is ultimately overturned, a targeted remedy will be available," Alito wrote, in an extreme understatement for such an extraordinary claim. What he means is he's leaving open the possibility to later toss out some voters' ballots.
Alito's position is superbly arrogant. Whatever one may think of the Pennsylvania Supreme Court's extension of the deadline to receive ballots, it is, in effect, the law of the state — just as the U.S. Supreme Court's decisions determine the state of federal law.
But rather than recognizing the court's authority, Alito warns that "the election in Pennsylvania" is "being conducted under a cloud." This claim is based on the idea that Alito himself objects to the court's ruling and nothing more.
In fact, it's his own statement, which threatens to invalidate ballots after they're cast and counted, that is putting the state's election "under a cloud."
Many legal experts argue that it's clearly the state supreme court's role to interpret questions of law in their state, and the Supreme Court shouldn't insert itself to intervene on state law matters. Alito, along with at least some of the other conservatives on the court, argue instead that because the Constitution grants authority over elections to state legislatures, the U.S. Supreme Court can and should step in to uphold the will of the Pennsylvania legislature, which did not want to extend the mail-in deadline.
Regardless of the merits of that debate, however, the legal facts are what they are. The state supreme court ruled, and a challenge to take the case to the U.S. Supreme Court before the election failed. Voters are currently planning to act under the laws as they've currently been established. Alito himself acknowledges that there is not enough time at this point to take the case up again, which is why he did not dissent from the decision of his colleagues not take up the case now.
What's truly arrogant, though, is that in spite those facts on the ground, Alito is continuing to assert that the U.S. Supreme Court should have a say and might overturn the existing rules. He sees it as so necessary that he and the Supreme Court involve themselves in a case that the Pennsylvania Supreme Court has decided that he's openly forecasting that they might overturn an election result and throw out ballots that were legitimately cast under the rules at the time. A more small-c conservative or modest justice would recognize that, whatever his objections in the case, his view hadn't won the day. But that's not how Alito sees it.
This arrogance is especially egregious give the matter at hand. While the issue, of cours,e has the potential to be highly influential, and thus the stakes are high, the state supreme court's decision is about the handling of ballots that would be cast by legitimate voters and presumably delivered by election day. Many states conduct elections this way — it's not as if the change is some extreme or unheard of remedy. Alito's extreme threat to disenfranchise people after the fact is not proportionate to the issue.
All that said, Pennsylvania voters with mail-in ballots would be well-advised at this point to not rely on the postal service to deliver their ballot, given the risks. They should seek out advice from their local election offices and potentially turn in their ballots in person or at official drop boxes, if possible.
Now, despite all the legitimate reasons I've described to be disturbed by Alito's statement, there are several reasons to think the issue is not particularly dire, as law professor Steve Vladeck explained.
In theory, Alito, along with Gorsuch, Thomas, Justice Brett Kavanaugh, and Barrett, could potentially hear a case after the election and decide to throw out enough ballots in Pennsylvania to swing the presidential race from Biden to Trump. But that seems quite unlikely to happen in fact, because a whole slew of factors would have to be in place for the move to work.
First, Pennsylvania would have to be the tipping point state in the electoral college. That's plausible, but far from guaranteed. Even more important, though, is that Pennsylvania would have to be the decisive state. This would mean that Biden only barely won the presidential election, with no extra states. That would likely mean Biden lost in North Carolina, Florida, Georgia, Arizona, and Texas, where he is currently either leading slightly or running neck-and-neck with Trump. Again, this is possible, but it probably isn't the most likely scenario.
The Pennsylvania race would also have to be extremely close, close enough for the mail-in ballots that arrive after Election Day to make the difference between Biden and Trump. Again that's possible, but it doesn't seem most likely when the New York Times polling average has Biden leading in the state by 6 points. Any ballots arriving after Election Day will be split between Trump and Biden — they could even potentially favor Trump — so it's only the final margin that would matter.
And for the Supreme Court's intervention to make the difference, Alito would need Barrett and at either Kavanaugh and Roberts to join him. It's impossible to give odds on how likely this is, but we can content ourselves by saying at least it's not a sure thing that a full five of six conservative justices on the court would be interested in going along with this plan after the votes have been cast.
Vladeck also noted that Pennsylvania has taken the wise step of planning to segregate any late-arriving ballots from the rest of the ballots it counts. That should forestall the possibility that the Supreme Court (or state legislature) would be inclined to say the state's whole election has been tainted by the inclusion of late-arriving ballots and try to circumvent the will of the people.
About The National Memo
The National Memo is a political newsletter and website that combines the spirit of investigative journalism with new technology and ideas. We cover campaigns, elections, the White House, Congress, and the world with a fresh outlook. Our own journalism — as well as our selections of the smartest stories available every day — reflects a clear and strong perspective, without the kind of propaganda, ultra-partisanship and overwrought ideology that burden so much of our political discourse.