Donald Trump, with an assist from Supreme Court, beer-loving Justice Brett Kavanaugh, is working hard to advance his claim that any mail-in or absentee ballot received after 8 PM on Election Day is not a valid vote. Kavanaugh planted the seed for that in his radical opinion agreeing with Wisconsin's attempt to disqualify ballots, arguing that "most 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." Never mind that ballots cast—even up to closing time Election Day—are the election.
Trump, however, is trying to set up his legal case to toss late-arriving ballots in battleground states Pennsylvania, North Carolina, Wisconsin, and now Minnesota. In Pennsylvania, the Supreme Court on Wednesday declined to review their previous 4-4 deadlock on whether Pennsylvania could count ballots received as late as Nov. 6. But! Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch left the door open for reviewing that after the fact—in other words, yanking the ballots after Election Day if Trump is close enough in the count and hasn't already clearly lost. Note that Amy Coney Barrett did not participate in this decision but she didn't recuse herself. She could very well join those three and Kavanaugh to invalidate late-arriving ballots in pretty much any battleground state, should Trump try to bring that fight.
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Pennsylvania Attorney General Josh Shapiro, a Democrat, spoke with The Washington Post's Greg Sargent about how the state is planning to counteract Trump. "We have a sitting president who's actively trying to undermine this election," Shapiro told Sargent. "He's doing that because he knows that if all legal eligible votes are counted, he's more likely than not going to come out on the losing side here in Pennsylvania." So the state will segregate all the late-arriving ballots, intending to prevent Republicans from challenging those ballots, and then "using that to challenge all mail ballots, by claiming they’ve all been commingled and can’t be separated from one another, requiring a halt to the count until the legal dispute over the late ballots is resolved." That's part of the defense Pennsylvania is setting up against Trump. "A careful decision was made to try to stave off the anticipated legal challenges by Donald Trump and his enablers," Shapiro said, but he didn't reveal more of the state's strategy to Sargent.
It's not clear where else Republicans see legal avenues. As of now, the Supreme Court is allowing North Carolina to count ballots arriving as late as Nov. 12, provided they are postmarked by Election Day. In his dissent, Gorsuch pointed out that just days before, the Court had decided basically the reverse in Wisconsin. The North Carolina decision came out of a lengthy, messy voting rights lawsuit in which the state and voting rights groups eventually agreed to the extended deadline. In Wisconsin, a state court had ordered the extension.
Now up pops Minnesota as a new legal battleground for Republicans, where the Trump campaign and legislative candidates are asking the state Supreme Court to segregate all the late-arriving mailed-in ballots as potentially suspect. This is after a state court approved an agreement with Sec. of State Steve Simon to allow a seven-day extension for receipt of mailed-in ballots. That decision is being challenged in a separate federal appeals court case by Republicans. A three-judge panel heard that argument this week. This new request to the state Supreme Court asks for mailed-in ballots to be separated into three groups: "those received before the regular deadline of 8 p.m. on Tuesday, those received after the regular deadline but before 8 p.m. on Nov. 10, and those received after the extended deadline." That’s presumably to give them maximum flexibility in which votes they might eventually ask the courts to toss.
There are so many potential avenues for a basically corrupt Republican Party with plenty of Trump-stuffed federal courts to try to steal this election. The one way to prevent that—particularly in these battleground states—is to make sure that as much of the vote as humanly possible is in election officials’ hands on Nov. 3. That means not mailing ballots now, instead dropping them off in collection boxes or at elections offices where allowed, voting early in person where possible and where safe, and voting in person on Election Day.
The best way to keep our democracy is to vote in such overwhelming numbers for Democrats that Trump and his minions—including the ones on the Supreme Court—have no avenue for fighting his loss. The best way to restore our democracy is with a Democratic House, Senate, and White House that will fight hard to undo the damage Trump, McConnell, all the Republican governors and legislatures, and the Trump-packed courts have wrought.
But first thing’s first: Vote and make sure your vote will be counted. Once that's done, help Get Out the Vote. And after Election Day, be ready to protect the vote.
If Trump attempts to stop the vote counting, we need to take to the streets. The Protect the Results coalition has been preparing for this by organizing hundreds of post-election events across the country. Click here to find, and RSVP for, the Count Every Vote rally near you.