GAMES PEOPLE PLAY

 In a development that should be surprising to nobody the Supreme Court, newly packed with a Trump majority, made a number of moves in the past couple of days that increase the likelihood of an undemocratic attempt to manipulate the Presidential election. Because that is the election that is currently capturing most eyeballs the additional consequences of these rulings, footnotes and pronouncements might be lost.

As I’ve previously written the misuse of the Constitution's Article 2 terms as a means to subvert the result of our elections is something that the Republican war machine has been maneuvering to introduce for some time. From a series of misleading memes that attempt to downplay the validity of popular elections (“we’re not a democracy, we’re a republic”) this effort has now moved on to Brett Kavanaugh pronouncing that Article 2 is meant to so empower the various State legislatures that even State courts, in the case of federal elections, may not intervene. He appears to state that this is true EVEN IF THE ROLE OF THE COURT IS TO INTERPRET STATE LAW. So – even if the actual constitution of (for example) Iowa was to say that their State legislature must accept ballots postmarked on or before the day of an election, Kavanaugh seems to indicate that an act of the Iowa State legislature contravening that clause would, in a federal election, still be superior to any finding by a State court that such a law was unconstitutional. The U.S. Supreme Court could therefore simply negate the actions of the State’s own judicial authorities. Kavanaugh would read the ambiguous language of the U.S. Constitution as being strong enough to overcome even the clearest of State attempts to limit the power of their own legislatures. This is the ultimate extension of the superiority clause – despite the fact that it is propounded by a “conservative” justice.

For true conservatives, who have long railed against the expansion of Federal power, this has to be incredibly galling, but, let’s be honest, there are very few true conservatives left out there. The justices who would vote for this concept of the law are little more than followers of a cult of personality. Why it would be somehow wrong to count votes that had been clearly cast properly, on time and via an accepted means of voting is a mystery. It seems Justice Kavanaugh simply wants to know the morning after the election who won, unless, of course, his guy didn’t win in which case he is perfectly willing to allow a State legislature or Federal court to overturn the result weeks later.

This has been quickly highlighted in a number of articles and brought to light by other posters on Facebook and similar social media (shout out to

Mary Mcginn Tambor

who was right on top of this travesty of “justice” and

Mary Alice Brink Schulte

and

Greg Schulte

who are busting their backsides to secure victory and overcome this type of manipulation). What I’m a bit more worried about is the fact that in focusing on the implications for the Presidential election (understandable) – people are missing that most if not all Kavanaugh’s dicta is careful to reference “federal” elections. This may be because many Republicans who are not card-carrying members of said cult of personality are beginning to steel themselves for the possibility that the Presidential election may already be lost. There are, however, other “federal” elections that could be close enough to hinge upon those postmarked ballots or State legislative actions. Using this approach to save the seat of a John Cornyn, Joni Ernst, Susan Collins or Lindsey Graham is also a distinct possibility.

The best way to combat this threat? Unfortunately – it’s not through the courts. It’s at the ballot box. “Winning” isn’t likely to be enough – in any race. The only viable alternative is “winning big” – voting yourself, getting out the vote, helping others get to the polls, delivering ballots via a method that is not dependent upon the mail – all of these things can counter the continuing voter suppression efforts of those who fear democracy.