The left is raising the alarm that Justice Amy Coney Barrett is poised to steal the election for President Trump. Democrats are demanding that the new justice recuse herself from election cases. Otherwise, warns The Washington Post, “the public’s faith in democracy” will “be destroyed.”
That’s the opposite of the truth: The Democrats are the ones endangering democracy by trying to tilt the scale for their candidate.
For months, the Democratic Party and allied groups have been swarming swing states with armies of lawyers filing suits. Some challenge voter-ID laws or signature requirements on ballots. But their biggest goal is to overturn state laws requiring that mailed ballots arrive by Election Day. Democrats want ballots counted even if they arrive several days late and have no postmark. As if elections don’t have deadlines.
The left claims that failing to count late ballots amounts to “disenfranchisement.” But you’d have to be living on the moon not to know by now to vote or mail in a ballot early to avoid Election Day crowds. That’s why an astounding 70 million people have already voted. The voter-disenfranchisement argument is akin to insisting the plane must wait for people who get to the airport late.
Whether late ballots will count will be litigated in the coming weeks, possibly leaving the election in limbo. Pennsylvania Republicans urged an expedited ruling before election day, but sadly, the top court declined on Wednesday.
That’s a procedural victory for the Democrats but probably a short-lived one. What’s likely to throw a wrench in their scheme is the clarity of the US constitution, which empowers state legislatures to determine “the time and place and manner of elections.”
Earlier this year, Pennsylvania Democrats did an end run around the Republican state legislature. Dems weaseled a concession from a sympathetic court allowing ballots that arrive as late as the Friday after Election Day to still be counted.
Republicans are asking the justices to overturn the Pennsylvania ruling. Otherwise, tens of thousands of late ballots will be counted, contrary to state law. It could turn the election; Trump took Pennsylvania by a slim 45,000 votes in 2016.
Of course, Democrats are already claiming that if Barrett participates in the Pennsylvania case, it will amount to election theft. Anyone who heard her testify knows that’s not true. Indeed, Barrett declined to participate in Wednesday’s consideration of an expedited hearing, because she said she was unfamiliar with the case. Even so, when the high court does rule on late ballots, expect Barrett to vote to uphold Election Day deadlines — and for the right reason. She takes seriously the words of the Constitution.
A majority of the court will likely agree. Deferring to state election law is a bedrock constitutional principle. This year, a majority of the court ruled against Democratic efforts to override state election laws in South Carolina.
The best preview of what is likely to happen in the Pennsylvania case occurred in an emergency ruling Monday night. The high court voted 5-3 against counting late ballots in another battleground state, Wisconsin. Democrats wanted to count ballots that arrive up to six days after Election Day, contrary to state law. Justice Brett Kavanaugh said it’s the job of “politically accountable state legislatures” to make those decisions, not federal judges.
Justice Neil Gorsuch argued that fairness requires a “single deadline” — no matter how you’re voting.
Yet liberals continue to attempt to destroy Election Night as an institution. The Pew Foundation is telling the public to forget tuning in for the returns. New York Times columnist David Brooks predicts that even if Trump looks to be ahead on Election Night, that apparent victory will be undone later. Facebook and Twitter are pledging to censor any election night victory claims.
The Supreme Court can’t manufacture ballots for Trump. He has to win the election fair and square. But the court can score a big victory for the American public by preserving the finality of Election Day. Gorsuch explains that “elections must end sometime.” Amen, amen.
Betsy McCaughey is a former lieutenant governor of New York.
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