Donald Trump claims ‘counting ballots for two weeks is not by our laws’ after SCOTUS justice Brett Kavanaugh claims absentee votes coming in after November 3 could ‘flip the election’
- Trump tweeted this summer: ‘Must know Election results on the night of the Election, not days, months, or even years later!’
- On Tuesday he said it would be ‘very, very proper and very nice if a winner were declared’
- But he said it would be ‘totally inappropriate’ to be counting ballots weeks later
- Supreme Court issued a decision Monday allowing Wisconsin to demand ballots be received by Election Day
- Decision featured furious clash between justices, with all Republican nominees in majority on 5-3 ruling
- Wisconsin Dems scrambling to get 360,000 absentee ballots returned on time
- Court allowed Pennsylvania to accept ballots later, but case could come back
- Effort to get new Justice Amy Coney Barrett to recuse from the case – she took her oath on Tuesday, just a week before the election
President Donald Trump said Tuesday it would be ‘totally in appropriate’ to still be counting ballots weeks after Election Day – and indicated he believes it would be illegal to do so.
Trump made his comment outside the White House amid record early voting following a huge push by Democrats to bank their votes early in an election that is shattering turnout records.
It also follows a Supreme Court ruling that allows Wisconsin to discount any ballots that come in after an Election Day deadline, even if they have a proper postmark and follow other procedures, and despite concerns about slow mail delivery amid the pandemic.
‘It would be very, very proper and very nice if a winner were declared on November 3 instead of counting ballots for two weeks which is totally inappropriate and I don’t believe that that’s by our laws,’ Trump said as he headed out on a campaign trip to Michigan, Wisconsin, and Nebraska.
His language was less demanding than a previous tweet, where he wrote: ‘Must know Election results on the night of the Election, not days, months, or even years later!’
In practice, states routinely count votes from military members, overseas ballots, or absentee ballots that come in after Election Day, so long as they have a postmark by the deadline.
First Lady Melania Trump is accompanying her husband on the campaign trail
TV networks make their election night predictions based on early counts and projections of outstanding vote. States routinely take weeks to complete a full count. State officials certify votes, which triggers electors meeting in Congress.
Trump has revived his past claims, without evidence, that mail-in ballots lead to widespread fraud.
‘With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???’ he wrote this summer.
Trump’s comments come after critical court rulings in battleground states that will determine the winner.
On Monday, the Supreme Court in a 5-3 decision ruled against revisiting a lower court ruling that would have extended the time when Wisconsin votes can come in and be counted. The decision set Democrats in Wisconsin rushing to get ballots in the mail to get them counted by the deadline.
Wisconsin was part of the key to Trump’s 2016 victory – and is experiencing a spike in COVID-19 infections.
The cased was based on a lower federal court’s ruling. All 5 justices ruling for the majority are conservative Republican appointees. The 3 on the minority side are Democratic nominees.
Kavanaugh blasted Justice Elena Kagan’s ‘green light to federal courts to rewrite dozens of state election laws around the country over the next two weeks seems to be rooted in a belief that federal judges know better than state legislators about how to run elections during a pandemic
The decision left Wisconsin Democrats scrambling to get 360,000 absentee ballots returned on time to be counted.
A district judge had sided with plaintiffs and agreed to extend the voting deadline by six days.
Also concerning Democrats was a dissent by Trump nominee conservative Justice Brett Kavanaugh, who sided against extending the deadline beyond Election Day.
He cited a dissent from the 2000 Bush. v. Gore case which ended up handing the election to George W. Bush by stopping a Florida recount – in a race where Al Gore won the popular vote.
Kavanaugh wrote that ‘under the U.S. Constitution, the state courts do not have a blank check to rewrite state election laws for federal elections.’
Wrote Kavanaugh: ‘The Wisconsin Elections Commission has mailed 1,706,771 absentee ballots to Wisconsin voters. And it has already received back from voters 1,344,535 completed absentee ballots.’
‘As those statistics suggest, the dissent’s charge that Wisconsin has disenfranchised absentee voters is not tenable.’ Wrote Kavanaugh: ‘Wisconsin’s deadline is the same as that in 30 other States and is a reasonable deadline given all the circumstances.’
Wrote Kagan: ‘On the scales of both constitutional justice and electoral accuracy, protecting the right to vote in a health crisis outweighs conforming to a deadline created in safer days.’
Kagan noted ‘Wisconsin is one of the hottest of all COVID hotspots in the Nation.’
Kavanaugh also defended Wisconsin, which has a Republican legislature, and other states who opted to count only ballots ‘received’ by election day.
‘Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election,’ he wrote.
That earned him a rebuke from Kagan.
She wrote in a footnote that Kavanaugh ‘alleges that “suspicions of impropriety” will result if “absentee ballots flow in after election day and potentially flip the results of an election.” Ante, at 7. But there are no results to “flip” until all valid votes are counted. And nothing could be more “suspicio[us]” or “improp[er]” than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is to disserve the electoral process.’
Adding to the intrigue, Kavanagh, Barrett, and Chief Justice John Roberts all worked for Bush’s successful legal effort.
In another decision last week, the court by 4-4 was deadlocked on a Pennsylvania decision, allowing changes to go into effect there.
State Republicans are back in court trying to roll back Pennsylvania’s extension of voting deadlines. The Luzerne County Board of Elections has filed a motion seeking to get the court’s newest Justice, Amy Coney Barrett to recuse herself. She was administered the official oath by Chief Justice John Roberts on Tuesday.
In the Pennsylvania case, which featured a 4-4 split decision last week on the Supreme Court, Barrett could swing the decision if she decides joining it wouldn’t create the appearance of a conflict.
‘The nomination and confirmation of a Supreme Court justice this close to a presidential election is unprecedented,” wrote the Luzerne County Board of Elections in a filing. “As concerning as that is, what is even more troubling is the language President Trump has used in consideration of this nomination, linking it directly to the electoral season at hand, with implications for his own re-election.’
‘Wisconsin’s deadline is the same as that in 30 other States and is a reasonable deadline given all the circumstances,’ wrote Justice Brett Kavanaugh
Barrett in her confirmation hearings didn’t rule out participating in election cases, even as Democrats painted the move to install her just days before the election as a power play.
‘I commit to you to fully and faithfully apply the law of recusal and part of that law is to consider any ‘appearances’ questions,’ she told Vermont Sen. Patrick Leahy (D).
But she hedged: ‘I can’t offer a legal conclusion right now about the outcome of the decision I would reach.’
Both Wisconsin and Pennsylvania are critical to deciding the winner, as evidenced by the candidates’ campaign schedules.
Trump touted his successful campaign performance by citing a series of states he carried in 2016 that are now tossups.
President Donald Trump talks to members of the media outside of the White House on October 27, 2020 in Washington, DC. President Trump and First Lady Melania Trump are heading to campaign rallies in Wisconsin and Nebraska. ‘It would be very, very proper and very nice if a winner were declared on November 3 instead of counting ballots for two weeks which is totally inappropriate,’ Trump said
An election worker drops a voter’s completed ballot into a ballot box inside City Hall on the first day of in-person early voting for the November 3rd elections in Kenosha, Wisconsin, on October 20, 2020
A man waits outside the Luzerne County Board of Elections where people drop off and request for mail-in ballots. Voting has started in Pennsylvania and daily voters are lining up to return Mail-in ballots in Luzerne County
Clarence Thomas, associate justice of the U.S. Supreme Court, right, administers the judicial oath to Amy Coney Barrett, associate justice of the U.S. Supreme Court, during a ceremony on the South Lawn of the White House in Washington, D.C., U.S., on Monday, Oct. 26, 2020. A Pennsylvania county is asking Barrett to recuse herself from an election case
‘If you look at the polls that came out today and yesterday — and I guess a lot had to do with the debate or a lot had to do with the rallies. I don’t know. But you take a look at the polls. Look at how we’re doing in Wisconsin. Look how we’re doing in Iowa. Look how we’re doing in Ohio. Look how we’re doing in Florida. Look how we’re doing everywhere, practically,’ he said.