I am writing on October 30, 2020. The US presidential election is imminent. The polls, which indicate Trump’s deep unpopularity, hang over Billionaire Capitalism like the writing on Belshazzar’s wall.
If Biden’s support on election day is anything like his support in the polls, he should win easily. He can only lose if:
- The polls are dramatically wrong, or
- Massive force is used to prevent or disrupt the voting or the vote count, or
- The election results are reversed by the Supreme Court, perhaps piecemeal, by imposing voter-suppression rules that prevent the states from counting all the votes—or wholesale, by throwing out the results of blue states by whatever contorted reasoning.
The polls might be wrong, but they are as likely to be wrong in Biden’s favor as in Trump’s. The margins we are seeing in the best polls indicate a margin of victory of around 10%. The Democrats won the 2018 election by a margin of 8.6%, and that was before covid-19. So 10% is believable, and in fact the USC Dornsife poll shows a margin of 11.4% for Biden. The sample size of that poll is over five thousand voters.
Force will probably be used to disrupt the election or the vote count, but it is highly unlikely to change the final result. Democrats are resolute, and it seems the majority of them have already voted. The Proud Boys have only a few hundred members, and attacking voters and election clerks won’t be a good look for them.
That leaves us with the Supreme Court. Could the Court give the election to Trump, on whatever pretexts? Their legitimacy hangs in the balance, and if they’re smart, they won’t reverse the election, but they may not be smart. Supreme Court justices can make terrible mistakes; the justices who signed the Dred Scott decision believed they were ending the controversy over slavery, once and for all. They never dreamed their decision would trigger civil war.
John Roberts certainly understands the question of legitimacy. He consistently makes the case that the judiciary isn’t partisan, and whether you believe him or not—I don’t—he at least thinks that partisan judges are a bad thing, a point I appreciate.
Roberts notwithstanding, concern about the Supreme Court fixing the election isn’t mere paranoia. Here’s part of Alito’s opinion on the last Pennsylvania decision:
“It would be highly desirable to issue a ruling on the constitutionality of the State Supreme Court’s decision before the election,” he wrote. “That question has national importance, and there is a strong likelihood that the State Supreme Court decision violates the federal Constitution.”
“The provisions of the federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless,” he wrote, “if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.”
You see where Alito is going with this? He’s saying that because the U.S. Constitution specifies that state legislatures are responsible for arranging elections—and it doesn’t mention state courts—that the PA Supreme Court cannot hear a complaint that the legislature’s rules violate the Pennsylvania Constitution, which is exactly what happened. Because the PA Supreme Court didn’t just jump in and pre-emptively interfere with the legislature—there was a lawsuit. There is a clause in the state constitution that guarantees that votes will be counted, and the state Supreme Court found that the Republican legislature had violated that clause.
Alito is not saying that the Pennsylvania Supreme Court misinterpreted the state constitution or that its decision was incorrect in some other way. He’s saying that the State Supreme Court had no business at all hearing the case.
How wrong-headed is this? Let us count the ways. First of all, there are state and local elections on these same ballots. The Pennsylvania Supreme Court doesn’t have the power to review election rules for state and local elections, because the US Constitution doesn’t explicitly give it that power? How absurd is that?
Second, Alito is saying that no one can review the actions of the state legislature with regard to elections, because Alito’s argument also applies to the Pennsylvania State Attorney General, the Secretary of State and even law enforcement, if fraud or bribery is suspected.
In other words, when it comes to elections, there are no checks and balances within Pennsylvania. But every other power the state of Pennsylvania has is conditioned on fair elections and the legitimacy they confer.
Lastly, Alito is implying that federalism is dead. If the state of Pennsylvania cannot uphold its own constitution through its own courts, then it’s just a hollow shell; if it cannot guarantee fair elections using its own methods, then it is likewise kaput as a political institution.
What about originalism? If the Founders intended anything, they meant to establish a strong federal system, but Alito just tossed all that into the “dustbin of history.”
This is what is comes down to: for all the pious lectures we’ve heard for so long about the Founders’ intent and the sacred status of federalism in the Constitution, keeping Billionaire Capitalism in power overrides all that. Because if Trump is President for another four years, the billionaires won’t face a tax increase. That’s always the highest priority: concentration of wealth and power.
And Alito doesn’t even hesitate to throw federalism overboard to protect the billionaires. Nor is he alone.
In the end, I believe the people will prevail in this election. But the conservatives on the Supreme Court will do all they can to undermine the integrity of this election, even if they destroy federalism and the legitimacy of the Court itself.
The Socialist Investor 