A Corrupt Bargain For The Court To Steal An Election

The most chilling portion of last night’s debate came during the last question segment on election integrity. Donald Trump said the quiet part out loud, that he expects the Supreme Court, which he hopes will include his newly nominated Justice, Amy Coney Barrett, will be the one to decide the fate of the 2020 election – not the millions of American voters who will be casting ballots from early September to election day. Trump Says He’s ‘Counting’ on Supreme Court to Decide Election:

“I’m counting on them to look at the ballots.” Trump said during Tuesday evening’s presidential debate. “I hope we don’t need them,” he added. But the large numbers of anticipated mail-in ballots, Trump said, will inevitably mean questionable election results. “This is going to be a fraud like you have never seen,” he said.

Trump reiterated many of his prior, mostly dubious, condemnations of mail-in voting, casting the practice as susceptible to widespread fraud and declining to say that he’d abide by the certification of election results that determined he’d lost to former Vice President Joe Biden.

“You have a fraudulent election. Eighty million ballots,” he declared, referring to the total number of absentee ballots expected to be cast by November, which Trump has frequently, and inaccurately, conflated with the number of ballots sent, unsolicited, to American voters. “People aren’t equipped,” Trump added. “And they cheat.”

Trump also reiterated his threat to sic his MAGA red caps, his version of Italian “black shirts” and German “brown shirts” fascist militias, on polling locations to root out allegedly suspect poll-site practices, i.e., to engage in voter intimidation.

“I am urging my people—I hope it’s a fair election. If it’s a fair election I’m 100 percent on board,” he said.

But “if I see tens of thousands of ballots being manipulated I can’t go along with that.”

In recent weeks, Trump has made several public statements that he wants to rush the nomination of Amy Coney Barrett so that she is on the court after election day, so she can deliver the tie-breaking vote on any election challenge to him.

Donald Trump does not have to have a confidential one-on-one conversation with Judge Barrett to make a corrupt quid pro quo request from her, “I would like for you to do me a favor though” if I nominate you to the Supreme Court. He has made this request openly and publicly several times now. The terms of the bargain are transparent and clearly understood by Judge Barrett. Her acceptance of the nomination clearly suggests that she has acceded to Trump’s corrupt terms, which also speaks to her lack of ethics.

Legal experts and Senate Democrats have argued that, under these circumstances, Judge Barrett must recuse herself from participating in any election challenge involving Donald Trump after election day to avoid the appearance of impropriety, and to preserve the integrity and impartiality of  the court.

One would think that any ethical judge would have no problem making this assurance — but you would be wrong.

Politico reports, In Senate questionnaire, Barrett won’t pledge to recuse herself from 2020 election cases:

President Donald Trump’s nominee to the Supreme Court did not commit to recusing herself from cases related to the outcome of the 2020 presidential election, according to her written responses to a Senate Judiciary Committee questionnaire.

Amy Coney Barrett’s responses, obtained by POLITICO on Tuesday night, also provide a window into the breakneck pace at which the White House operated in the aftermath of Justice Ruth Bader Ginsburg’s death, with Barrett revealing that Trump settled on her as his pick just three days after Ginsburg’s death.

Barrett’s statements on her standard for recusals are certain to draw fire from Democrats, who have been pressuring Barrett over the issue as [corrupt] Republicans dismiss their arguments as having no basis. More broadly, Democrats have strongly objected to Senate Republicans’ effort to confirm a new Supreme Court justice this close to the election.

Barrett said she would recuse herself from cases involving her husband, Jesse Barrett, and her sister, Amanda Coney Williams, both of whom are attorneys. Barrett also would recuse herself from cases that include Notre Dame University as a party. Barrett has been a law professor at Notre Dame since 2002.

The 48-year-old nominee also said she would step aside from matters in which she participated while serving in her current role as a judge on the U.S. Court of Appeals for the 7th Circuit.

Top Democrats have called for Barrett to commit to recusing herself from issues that involve the outcome of the 2020 presidential election, given the possibility that the result could be decided by the Supreme Court. Democrats have also accused Trump of seeking to place a loyalist on the high court in the event of a contested election.

“The underlying fault here is with the timing, which makes it a sham, but certainly she should recuse herself. In a normal world, there would be no question about it,” Sen. Richard Blumenthal (D-Conn.), a member of the Judiciary Committee, told reporters.

Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) countered that such a request was “absurd.”

“There is no legal disqualification. She doesn’t have a legal conflict. She doesn’t decide the election. She’s just a vote like everybody else.” Graham told reporters. “That’s a ridiculous idea that she can’t hear election claims because she was nominated in an election year.”

Let me explain it to you, soon-to-be ex-senator. It’s not about it being an election year. Trump has made a very public quid pro quo request to Judge Barrett to be the decisive tie-breaker vote on the Supreme Court to decide the election, and rule in his favor in any election challenge if he nominates her to the court. Trump would not appoint any nominee to the court who does not give him this assurance, he can’t take any chances. Judge Barrett accepted the nomination, which clearly indicates that she has acceded to his terms. This is public corruption and is a crime.

As this FBI explainer provides, “Public corruption, the FBI’s top criminal investigative priority, poses a fundamental threat to our national security and way of life. It can affect everything from how well our borders are secured and our neighborhoods protected to how verdicts are handed down in courts to how public infrastructure such as roads and schools are built.” The Bureau’s Public Corruption program focus includes election fraud.

Fox News analyst Juan Williams explains in this op-ed, Trump’s Supreme Court power grab:

One of the questions at Tuesday night’s presidential debate is sure to be about the far-right’s frantic rush to get a Trump nominee added to the Supreme Court with the election little more than a month away.

But there is a bigger question.

Can we now stop playing games?

Let’s just accept that every opinion from the high court is now nothing more than a Republican or Democrat majority spinning the law to fit the political agenda of the red or blue team.

President Trump’s actions remove all pretense about justices as impartial, learned people upholding the law. This is an exercise in brute politics.

What we have now at the very top of the American judicial system are nine politicians wearing the robes of Supreme Court justices.

This fits with Trump transforming the Centers for Disease Control from a trusted source of information on heath to a political agency being used to minimize his failed handling of a pandemic.

It fits with Attorney General William Barr using the Justice Department to protect Trump and his pals — from Michael Flynn to Roger Stone — while looking to produce damaging charges against Democrats.

It fits with Trump undermining public trust in the FBI and CIA after they found evidence of Russian interference to help him in both the 2016 election and the current election.

Much of that can be repaired over time beginning with a new president.

But the Supreme Court is different.

Supreme Court justices get lifetime appointments.

And in a country founded on the idea that it is a nation of laws, a lack of trust in the Supreme Court’s ability to be impartial portends long-term damage.

A Gallup poll taken earlier this year found that just 40 percent of Americans say they have either a “great deal” or “quite a lot” of confidence in the Supreme Court. A much greater number, 58 percent, said they had only “some” or “very little.”

Keep in mind, Trump has no mandate to dismantle trust in the court.

To the contrary, he is a president who lost the popular vote by almost 3 million votes. His job approval rating has never reached 50 percent in the RealClearPolitics polling average.

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This tyranny of the minority — there are more Democrats in America than Republicans — led Ian Millhiser to write in Vox: “If Trump fills the Ginsburg seat, fully one-third of the Court [the three justices put on the court by Trump] will be controlled by judges with no democratic legitimacy.”

Several polls done last week showed a clear majority of Americans think the current opening on the court should be filled by the winner of the November election.

A Reuters/Ipos poll has 62 percent saying the next president deserves to make the nomination. That includes 49 percent of Republicans who say the nomination is best left for after the election.

A Reuters/Ipos poll has 62 percent saying the next president deserves to make the nomination. That includes 49 percent of Republicans who say the nomination is best left for after the election.

A Morning Consult/Politico poll had 50 percent of registered voters agreeing that the winner of the 2020 race should get to pick the nominee.

And Rasmussen, often favorable to Trump, also found 51 percent of likely voters saying that the winner of the election is the right person to make the pick for the court.

Public opinion in opposition to Trump filling another Supreme Court seat before the election also reflects the political games he played with his first two picks.

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Now we have Trump’s nominee, Amy Coney Barrett, a polarizing Republican judicial activist hostile to abortion rights and government regulation of big industry.

Barrett’s record on voting rights is scarce, but would be the first critical test of her tenure on the court. Politico reports, Just How Conservative Is Amy Coney Barrett’s Record on Voting Rights?

If the Senate majority confirms Judge Amy Coney Barrett to the Supreme Court, just days before an election that’s already underway, one of the first issues she will likely face as a Justice Barrett is the election itself.

Critics have voiced concern over her views on abortion and health care. But a case that bears on the election would have to be decided in a few weeks or even days, much like the Bush v. Gore litigation, which ended when Barrett’s mentor, Justice Antonin Scalia, wrote a decision handing the disputed election to George W. Bush by 537 votes out of 6 million cast in Florida.

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[T]he Supreme Court has devised a test for determining whether restrictions on access to the polls are constitutional. Known as the “Anderson-Burdick” balancing test (named for two Supreme Court cases involving access to the ballot), it requires courts, first, to determine whether an election law imposes a “severe burden” on an individual voter’s rights. If a court decides that a burden is “severe,” then it must apply what’s known as “strict scrutiny” to the law. This means that the government has to have a very strong reason justifying the measure, or it gets struck down. … If the court decides that the restriction is not severe, a lower level of scrutiny applies, meaning the government doesn’t need to work so hard to justify it. As important as these standards are, unfortunately the Supreme Court hasn’t defined these terms with much clarity, affording judges a high level of subjectivity when they analyze whether a voting restriction should stand.

Barrett knows this test well, because she applied it in a 2019 opinion she authored for the U.S. Court of Appeals for the 7th Circuit [in] Acevedo v. Cook County Officers Electoral Board involved a Democratic primary ballot for Cook County sheriff in Illinois.

[I]n Acevedo, Barrett decided that the need “for orderly and fair elections” outweighed the relatively nonsevere First and 14th Amendment interests of the candidate. The signature requirement, she ruled, was “not severe.” Prior cases made it “hard for Acevedo to show that the 0.5 percent requirement is anything but slight, which is perhaps why he doesn’t even try.” She concluded, “[i]t goes almost without saying that this slight burden is justified by Illinois’s relevant and legitimate state interests.” She made no mention of his First Amendment argument that ballot access burdened his free association rights.

Certainly, a case involving a county sheriff has nowhere near the national impact of a case involving a presidential election as hotly contested as the one now underway. Nevertheless, the Anderson-Burdick test that would come into play in both should make a textualist such as Barrett squeamish.

It gives lifetime, unelected judges massive discretion to control state electoral processes with virtually no guiding principles from the Constitution itself. But that’s not Barrett’s fault. The test is one of many that are “read into” the Constitution by the Supreme Court—not because the justices are bad judges, but because the Constitution is hopelessly ambiguous. If a case involving the 2020 election reaches the Supreme Court over the constitutionality of state law requirements like signature-matching on mail-in ballots, notary public mandates for signing ballots, closed polling sites or limits on drop-off boxes, the Supreme Court will almost certainly apply this highly subjective test.

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After Nov. 3, we can also anticipate Republican-led challenges to state laws that allow election officials to count ballots after Election Day. Indeed, many states mandate that counting begin only after the last ballot is cast. For an election with an anticipated avalanche of mail-in ballots, these laws mean that poll workers will have to match signatures (with no expertise and little training), open envelopes, unfold ballots, stack them, feed them into machines and resolve any disparities before the votes are fully tallied. In a minority of states, voters are given an opportunity to correct errors. If a case were to reach the Supreme Court challenging post-Nov. 3 ballot-counting, the court would again be faced with the squishy “Anderson-Burdick” balancing test that allows judges to apply their own discretion in deciding if a burden is severe and unjustified. And again, elusive voter fraud will be the countervailing argument.

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For all her professed devotion to conservative approaches to constitutional and statutory analysis, it is not entirely clear that Barrett wouldn’t readily defer to a state’s generic interest in “fair and orderly elections” or the voters’ access to the ballot if Trump’s election were hanging in the balance. Perhaps even more than abortion, voting rights is the key issue that Senators must probe deeply with Barrett in her confirmation hearing. Literally nothing is more important to the interests of their constituents.

Democracy hangs in the balance.