It Ain't Over 'Til It's Over

Yes, Election Day was yesterday and we still don't know who is going to be president for the next four years. Trump, of course, has claimed victory, based on the voices in his head, but they're still counting votes -- millions of mail-in ballots. For some reason, only a few states allow absentee/mail-in ballots to be counted before election day. The thinking behind that eludes me.

This is going to wind up in the courts. It's already been there, and that's going to be a big problem, now that the GOP has stacked the Supreme Court with Republican hacks. Digby has a post quoting extensively from an article by Ian Millhiser examining the legal landscape -- or at least, part of it:

Two significant legal events occurred last week that could determine whether the winner of the 2020 election actually becomes president. They could also shape American elections for years to come if the Supreme Court’s 6-3 Republican majority remains in place. The first was the confirmation of Justice Amy Coney Barrett, which not only gave Republicans a supermajority on the Supreme Court, it also most likely made Justice Brett Kavanaugh the swing vote in election cases. While Kavanaugh’s approach to election law is extremely conservative, he’s staked out a position that is slightly more moderate than the views of his most conservative colleagues Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch.

The second event is that, last Monday, just minutes before Barrett was confirmed, the Supreme Court handed down a decision that prevents ballots that arrive after Election Day in the state of Wisconsin from being counted. Kavanaugh joined that decision, and he also wrote a separate concurring opinion that endorsed a radical reading of the Constitution that would upend at least a century of established law.

Briefly, Kavanaugh signaled that he wants to give federal courts — and his Court in particular — an unprecedented new power to overrule state supreme courts and to potentially rewrite state election law. Some of the implications of this view are discussed below, but the upshot is it means that Kavanaugh appears ready to change longstanding rules that have governed elections for a very long time.

That's bad enough, but it gets worse:

There is, however, a crucial question that the Supreme Court has yet to resolve. If the courts change the rules governing an election after voters have already cast their ballots, are voters who did not comply with these new rules disenfranchised, even if they followed the rules that were in place when their ballot was cast?

Three justices, Thomas, Alito, and Gorsuch, have all claimed that voters who followed the rules that were in place when their ballot was counted can have their ballots tossed out anyway if a court later changes the rules.

ANd how long, do you suppose, before we dispense with holding elections at all, and just let the courts decide who our elected officials are going to be? American democracy -- it was fun while it lasted.