November 2, 2020 • Day 235
Well, folks, we made it. Tomorrow is Election Day—one way or another, the U.S. presidential election will move out of the realm of hypotheticals, of polling models and insane debating strategies and threats to not concede, and into concrete reality.
There are folks on Twitter convinced that not only might the polls be wrong, but that polling doesn’t even matter, because the election will be decided by legal strategems, voter intimidation, and strongman tactics by an emboldened, all-powerful conservative gang. This Twitter crew are not just skeptical of models and data, they’re angry at the suggestion of anyone talking about this election as if it will be decided by the voters.
Nate Silver @NateSilver538We've gotten a lot of data, most of it very recent. 91 million people have already voted. There's no October surprise unless you want to count the latest COVID spike, which isn't good news for Trump. Trump can win but there's not much indication of a last-minute surge toward him.
Then again, that was Saturday, when it looked like Texas Republicans were poised to get 127,000 Harris County ballots cast at drive-thru early voting sites thrown out the day before the election. As I wrote here last week, in discussing the SCOTUS ruling in DNC v Wisconsin Legislature, GOP lawyers and jurists’ big new strategy to get “the ballots” thrown out is to argue that local election authorities can’t change election processes or rules in response to the pandemic, because the U.S. Constitution only allows state legislatures to do that.
Something I didn’t appreciate when I wrote that other post is just how brazen and extreme this argument is—sure, the Constitution doesn’t explicitly guarantee a right to vote, but no one has ever tried to put these principles in conflict with each other in a Chewbacca Defense-like maneuver to throw out thousands of votes. A lot of our anxiety has come from believing that all these courts that Trump and McConnell have been packing all these years would, naturally, issue partisan decisions and side with Republicans.
Which is why it’s such great news that both the (all-Republican) Texas Supreme Court and a (Republican-appointed, very Republican) U.S. District Court judge shot the Harris County case down big time. As reported by the Texas Tribune (bolds mine):
In his ruling from the bench, Hanen said he rejected the case on narrow grounds because the plaintiffs did not show they would be harmed if the drive-thru ballots are counted. He noted, however, that the U.S. 5th Circuit Court of Appeals could think differently if the cases reaches them. The Republican plaintiffs are appealing the decision.
If he had ruled on the larger issues in the case, Hanen said he would have rejected the request to toss out votes already cast. But Hanen said he would have shut down Harris County's drive-thru polling places for Election Day, because the tents being used for the sites don't qualify as voting inside a "building,"a requirement under state election law.
It’s indecent that the plaintiffs would even bring such a lawsuit, and unsatisfying that Judge Hanen rejected it for technical reasons (the plaintiffs lacked standing to bring the suit and could not demonstrate harm) while signaling an openness to the absurd argument that it matters whether or not voting happens inside a “building” or not.
But he echoed part of SCOTUS’s Oct 6 ruling regarding South Carolina’s witness requirement in saying he would not have thrown out ballots already cast. While conservative judges have been willing to limit and even roll back COVID-era changes to voting access, they’ve also not let these cases serve as pretext to throw out votes.
All to say: yeah, Trump says this election may end up in the Supreme Court. It’s actually already ended up there six or more times, and will probably be there again. Depending on which places have which vote margins tomorrow (and beyond), there may be court battles that shape the outcome of the election. Or there may not be. There are some glimmers of life left in our institutions and rule of law. And, in all likelihood, the next president will be chosen by voters, not Federal courts.
As historian Heather Cox Richardson wrote in her newsletter:
But on this night of calm before the storm, I am the opposite of discouraged.
I am excited about our democracy and our future. … We are taking back our country, and once we have done so, we will find that no problem is insurmountable.
Democracy is rising. It might not win on Tuesday—no jinxing here!—but if not then, the week after that, or the month after, or the year after. After more than thirty years studying our country's history, I have come to believe in American democracy with an almost religious faith.
I know it’s frightening to hear the stories of Republican leaders trying to get ballots thrown out, and right-wing thugs intimidating Biden voters, and so on. But that Republicans feel the need to engage in such tactics despite their ongoing voter suppression and gerrymandering is a tell-tale sign that they know their party has lost any hope of winning a majority of voters, and that the only way they can win an election is to cheat.
That strategy is not sustainable.
Today it’s been reported that Trump is having “un-scalable walls” built around the area surrounding the White House where he plans to hold a victory celebration tomorrow night. (Is Mexico paying for these walls too?) Not a great look for someone who will, in all likelihood, claim to have been re-elected legitimately as leader of a democracy.
Likewise, while people have asked with actual concern if things are okay here in New Jersey, given news reports that a Trumpist truck caravan shut down traffic on the Garden State Parkway, I agree with NJ Governor Phil Murphy who said “boy, to me that was was silly.” It sure will be awkward when a bunch of these people get traffic citations or court summons in the mail. Trumpism is fundamentally ridiculous and, yes, unsustainable. Obstinately shutting down things the public relies upon is their only move, and it’s really stupid. (I mean, could they have maybe chosen a less silly place for their brave stand than a rest stop in a place named Cheesequake?)
Anyway, we’ll — finally — see what happens this week.