Hopefully courts won’t let states take a lot of time to count ballots after November 3

A lot depends on the meaning of the phrase “a lot” here.

No one wants weeks of uncertainty after Election Day about who won. The country can’t take it; everyone’s on edge. But there’s also no reason to think that the count will take weeks. And I don’t recall Trump complaining about the possibility of delay four years ago, when he won by the skin of his teeth in the Rust Belt and his victory wasn’t formally certified until late November.

The projections on election night were solid enough for him to declare victory. We’ll see if he applies the same standard next Tuesday night if the projections this year are going the other way.

His complaints about delay remind me of him saying last month that it’s important to have a ninth justice on the Court to decide any election disputes. In theory that’s also a disinterested call for certainty. We don’t want an evenly divided SCOTUS forced to punt to a lower court on a ballot case that might decide the presidency because it can’t reach a consensus.

But Trump doesn’t do “disinterested.” If certainty will help him — as it will in the case of a ninth justice, since that justice happens to be one of his own appointees — then he’s for certainty. If uncertainty will help him, then he’s for that. Trump doesn’t care about principles; Trump is for Trump. The reason he doesn’t want states taking “a lot” of time counting ballots after Election Day next week isn’t because he’s worried about “uncertainty,” or fraudulent votes trickling in. He’s worried about valid votes trickling in, knowing that mail-in ballots will trend heavily Democratic and might erase whatever same-day advantage he’s built up when the polls close on November 3.

No hyperbole: His strategy is to win by disenfranchising anti-Trump voters in swing states to the greatest legal extent possible, with Amy Coney Barrett administering the coup de grace if need be. Plan A is to get more votes than Biden in Florida and Pennsylvania. Plan B, if he’s trailing, is to get enough votes for Biden disqualified that Trump wins via the back door. Whether the grounds for disqualification are technicalities involving placing the ballot in the right envelope or whatever or trying to impose some court-mandated deadline to stop counting, by hook or by crook he’ll try to stop Biden ballots from being counted.

And here’s the key point. In Pennsylvania, which might decide the election, efforts to speed up the counting in order to provide a more certain outcome on election night are being blocked by … Republicans. If Trump wants certainty then he should be all for faster counting. But he’s not, because the polling right now is showing him that the most likely result from a quick count will be public certainty that Biden has won. So Republicans are going to play for time. Instead of agreeing to let Pennsylvania start counting mail-in ballots early, they’re standing by a state law that would delay the start of the count until the morning of Election Day, guaranteeing that counting will spill over into the days following. The plan is to hope that Trump is ahead after however many ballots have been counted as of, say, midnight, and then to start screaming the next day as Biden cuts into his lead that the vote is being rigged. It’s a con, essentially.

There are other efforts going on all over the map to get valid votes thrown out if they arrive after polls have closed. It’s not the voter’s fault if a ballot arrives late — or at least, it isn’t in every case. (If you drop your ballot in the mail an hour before polls close, it’s your fault. If you drop it in the mail five days early and the Postal Service drags its feet in delivering it, it’s their fault.) And there’s no reason to think that a ballot that was mailed a few days before Election Day and arrives the day after is more likely to be fraudulent than a ballot that arrived weeks before November 3. So why the GOP scramble to get them thrown out? Answer: Because the strategy is to win by disenfranchising anti-Trump voters to the greatest legal extent possible.

The argument for a rule that the ballot must arrive *by* Election Day is certainty. America needs to know who won, as much as feasibly possible, by November 3! But again, if that’s the guiding principle then the Pennsylvania GOP should also be all-in on letting mail-in ballots be counted early. We need certainty. Don’t we?

Pennsylvania and Michigan both expect to have full counts done no later than Friday, November 6. Whether that qualifies as “a lot” of time for Trump’s purposes probably depends on whether he’s ahead or behind at close of business on November 3. Meanwhile, SCOTUS ruled just a few hours ago that it won’t interfere — yet — with the Pennsylvania Supreme Court’s ruling allowing the counting of ballots that arrive within three days after Election Day. (Barrett didn’t participate.) The state court’s ruling appears to contradict a state statute; the court justified its decision by claiming that the “natural disaster” caused by COVID required a bit of leeway this year. Where that leaves us, though, is with the possibility that Pennsylvanians will send in ballots that arrive on November 4, 5, and 6, which they have every reason to believe are valid, only to have SCOTUS turn around and invalidate them after the election by overruling the Pennsylvania Supreme Court then. Having the rug pulled out from them that way after SCOTUS passed on a chance to provide guidance before the election would be a catastrophe for the country, delegitimizing the outcome and the Court. Clarity for voters requires the resolution of this issue ASAP.

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