Trump's war on voting is backfiring — but that could change with Barrett on the Supreme Court

Trump is failing to keep people from voting. But if Barrett is confirmed, he still has a shot at stealing this

By Amanda Marcotte

Senior Writer

Published October 20, 2020 1:00PM (EDT)

Amy Coney Barret and Donald Trump (Photo illustration by Salon/Getty Images)
Amy Coney Barret and Donald Trump (Photo illustration by Salon/Getty Images)

Donald Trump's war on mail-in voting seems, like many of his schemes to steal the election, to be backfiring.

As much as he may publicly deny it, Trump knows he's unpopular and cannot win a free and fair election. So he has determined that the best way to hang onto power is to keep as many Americans from voting as possible. Since nearly the beginning of the coronavirus pandemic, Trump has been waging war against mail-in ballots, which many millions of Americans are using this year in order to avoid crowded and unsafe polling places.

Trump has repeatedly and falsely declared, with the help of Attorney General Bill Barr and White House press secretary Kayleigh McEnany, that such ballots are dangerous and fraudulent. He has threatened to use mail-in ballots as an excuse to reject the results of any election he loses. His postmaster general, Louis DeJoy, has been shamelessly taking measures to slow down delivery of the mail. And the Republicans, under Trump's leadership, have done everything in their power on the state level to keep as many ballots as possible from being cast and counted. 

And yet, likely because of the very public nature of Trump's war on voting, the whole scheme seems to be backfiring. Since he isn't even hiding what he's doing, it's been easy for Democrats to communicate the importance of voting early, to protect votes from Trump's machinations, without facing a wall of skepticism from the usual suspects in the media.

The result is a wave of early voting unlike we've ever seen in the United States. As of Tuesday morning, over more than 31 million Americans have cast their ballots, which amounts to at least 20% of the expected vote total for this election. And that's with two weeks to go. Americans, or at least those Americans likely to vote for Democrats, clearly understand that Trump is trying to deny them their right to vote — and they're doing what they can to stop him. 

Supporters of democracy secured another win late Monday, when the Supreme Court threw out a Republican challenge to Pennsylvania's decision to extend the deadline for ballots to be received up to three days after Election Day. That temporary measure was put in to deal with the pandemic and the expected surge of people voting by mail for the first time. Pennsylvania is a swing state that was crucial to Trump's Electoral College victory in 2016, so he's especially keen on suppressing Democratic votes in that state. 

This is the second fight Republicans have lost in their efforts to prevent people from voting by mail in Pennsylvania. The Trump campaign also sued to keep the state from establishing drop boxes that allow voters to skip the Postal Service — and the slowed-down mail — by handing ballots directly over to election officials. That lawsuit was thrown out earlier this month and voters in the state have started casting ballots at the boxes

Unfortunately, there's a fly in the ointment, the nature of which was neatly laid out by Ian Millhiser at Vox: Four of the five Republican justices on the Supreme Court, in the face of all law and precedent, were ready to entertain Trump's obviously illegitimate challenge to the Pennsylvania election deadline. 

This is terrible, because, as Millhiser points out, election law is determined by the states and "in questions of state law, the state Supreme Court is supposed to be the final word on such disputes."

"Indeed, if state supreme courts cannot interpret their state's own election law, it's unclear how that law is supposed to function," he adds. 

In other words, rejecting the Pennsylvania Supreme Court's ruling to uphold the law shouldn't even have been an option. That four Republican justices feel otherwise suggests, unfortunately but unsurprisingly, that there's no legal argument Trump could make that is so preposterous that these four justices would reject it, so long as it serves the end goal of securing Republican power, including a second term for Donald Trump.

Trump has made it clear that he's looking to the Supreme Court to save him from facing the judgment of voters. That four right-wing justices are willing to go along with this, no matter how much doing so violates the plain wording of the law, is terrifying. That's especially true in the face of the Republican rush to seat Amy Coney Barrett on the court before the election, since she's almost certain to be a fifth vote for the principle that Republicans deserve to hold power, law and democracy be damned. 

This is why it's not hyperbolic to see the Barrett as the last leg being kicked out from under our fragile democracy, which can only be restored by expanding the Supreme Court, if and when Democrats regain the power to do so. It's hard to imagine democracy surviving if a Supreme Court with six conservative justices gets the ultimate say over elections, and if their guiding principle is that any Democratic victory is illegitimate, regardless of the low-quality, bad-faith arguments presented. The goal of Republicans, under Senate Majority Leader Mitch McConnell, is to make the U.S. a one-party state and shut out any voters who resist that. They are shockingly close to achieving that goal. 

It's easy to give into despair, but let's be clear: All is not lost. For one thing, even this corrupt slate of current justices probably wouldn't go so far as to completely vacate the results of an election, simply because Trump wants them to. They'll want to be a bit more subtle about it, using measures like trying to stop vote-counting as early as possible. But if Joe Biden wins the November election in a blowout, as now seems possible, that strategy will become impossible. The fact that so many people are voting early is a good sign — it means vote-counting will be well underway before the Barrett court can rush in to stop it. 

In addition, while Barrett's confirmation is looking likely, Democrats haven't given up completely on trying to slow it down or even stop it before the election. Late on Monday, Democrats tried to force a vote to adjourn Senate business until after the election, which would keep Barrett off the court. That move failed, but Senate Democrats have indicated they'll keep trying to use procedural moves to slow Barrett's confirmation down until after the election, which is only two weeks away. 

There's no reason to be Pollyanna-ish here. Things are bad. Republicans are doing everything in their power to end democracy and render the right to vote meaningless, and using the courts as their main weapon on that front.

But so far they haven't succeeded, in no small part because the American people are still resisting, the courts haven't completely sold out to anti-democracy ideologues, and Trump himself is as bad at staging a coup as he was at running his business. Moreover, time is running out on the plot to keep people from voting and more votes are being banked every day. There's still a chance to pull our democracy back from the abyss, but it's going to require ordinary people doing everything they can to save it

By Amanda Marcotte

Amanda Marcotte is a senior politics writer at Salon and the author of "Troll Nation: How The Right Became Trump-Worshipping Monsters Set On Rat-F*cking Liberals, America, and Truth Itself." Follow her on Twitter @AmandaMarcotte and sign up for her biweekly politics newsletter, Standing Room Only.

MORE FROM Amanda Marcotte