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A Rigged Judiciary Leads to Rigged Elections: Ari Berman on Barrett Hearings & GOP Voter Suppression

StoryOctober 13, 2020
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Amy Coney Barrett’s involvement in the court fight over the 2000 presidential election, when she was a member of George W. Bush’s legal team, shows she is willing to bend the law to benefit Republican candidates, says Mother Jones reporter Ari Berman. “That’s what’s so disturbing about Amy Coney Barrett, because that’s exactly what President Trump wants to do right now,” says Berman. “He wants a justice who will rule his way on the vote count, no matter what the facts or the law actually says.” Berman also looks at challenges voters are facing nationwide as early voting is underway from Georgia to Arizona, where the Pascua Yaqui Tribe filed a lawsuit Monday to reinstate the only early in-person voting site on the reservation, which was shut down in 2018.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!, democracynow.org, The Quarantine Report. I’m Amy Goodman, with Juan González. By the way, go to democracynow.org today. We are live-streaming the full Senate Judiciary Committee hearings for Amy Coney Barrett.

Well, we’re going to turn now to how Barrett may influence the outcome of the 2020 presidential election. President Trump said he wants the Supreme Court to weigh in on any election dispute, and intends for Amy Coney Barrett to be on the court in time to be a part of that decision.

This is not the first time Judge Barrett may have a sway over the results of a presidential election. In 2000, she worked for George W. Bush’s legal team on the Bush v. Gore case that stopped the recounting of ballots in Florida and secured the presidency for George W. Bush. If confirmed, Barrett will be the third sitting justice to have worked on Bush’s team in 2000. Justices Brett Kavanaugh and John Roberts also worked on behalf of the Bush campaign during the Florida recount, stopping it.

For more, we’re joined by Ari Berman, senior reporter for Mother Jones, his latest piece headlined “Trump Wants a Repeat of Bush v. Gore. Amy Coney Barrett Might Make It happen.”

Tell us about this case, Ari.

ARI BERMAN: Good morning, Amy.

So, Amy Coney Barrett, as you mentioned, was one of potentially three conservative justices, along with Brett Kavanaugh and John Roberts, who worked in Florida during the 2000 recount. She had clerked for Justice Scalia. She was 28 years old. She was working for a law firm that worked with George W. Bush’s main law firm, Baker Botts, run by James Baker, the big Washington power broker. And she worked on a case related to Bush v. Gore — two cases, actually, in which the issue was mail ballots. So, it’s interesting because the issue is once again mail ballots today.

But what happened in Florida was that there were absentee ballot request forms sent to Republican voters in 2000 in Florida. There were errors on those request forms. And Republican officials were actually able to go into the elections office, take out these absentee ballot request forms, fill in the missing information — which was illegal under Florida law for them to do this — so that Republican voters could get ballots. This gave Republican voters a huge edge in mail ballots in Florida 2000. Afterwards, Democrats tried to throw out these ballots, because they said that voters should not have gotten them because Republicans illegally tampered with the ballots. Amy Coney Barrett went down as part of the legal team to try to get those mail ballots counted. If those mail ballots had been thrown out, Al Gore would have been president. So, this was a really important case that got very little attention at the time.

And it’s really ironic, because Amy Coney Barrett was defending Republicans doing the very thing that the Trump campaign is litigating right now. And it basically shows you the Republican Party has no principles when it comes to mail ballots. They’ll do whatever they can to try to maximize their vote count, even ignoring evidence of fraud or improprieties in the process. I think that’s what’s so disturbing about Amy Coney Barrett, because that’s exactly what President Trump wants to do right now. He wants a justice who will rule his way on the vote count, no matter what the facts or the law actually says.

JUAN GONZÁLEZ: Well, Ari, you’ve been following what’s been going on around the country on this issue of mail-in ballots and just the protection of the right to vote across the country. There are reports today of the Republican Party in California putting out unofficial ballot collection boxes in different counties, and the Democratic state attorney general and other officials ordering them to stop. Could you talk about what you know about the California situation and other — the most grievous examples you’re finding of tampering with the vote around the country?

ARI BERMAN: That’s right, Juan. The California Republican Party tried to set up their own mail ballot drop boxes, which are illegal. Only the state of California can set up these drop boxes. And it led to major voter confusion, that people could put their ballots in these drop boxes, not realizing they’re unofficial drop boxes, and their vote could be nullified. And, of course, California is a heavily Democratic state, and Democrats are voting by mail in larger numbers than Republicans, and particularly want to drop their mail ballots off because they’re worried about the Postal Service. So this seemed like a deliberate attempt by California Republicans to try to throw out all of these Democratic-cast mail votes that are going to be dropped off at these drop boxes.

There’s a lot of attempts around the country to try to restrict mail voting. Two of the most egregious attempts are in Ohio and Texas, where Republican officials there have limited mail drop-off boxes to one per county, meaning that Ohio will only have 88 drop boxes for mail voting in the entire state. Michigan has a thousand drop boxes for mail voting. Ohio is only going to have 88. In Texas, the governor there just issued an order a few weeks ago saying there could only be one drop box per county. That means instead of 12 drop boxes in Harris County, there’s going to be one. That’s a country that has more people than 26 states. That’s larger than the state of Rhode Island, that has 2.4 million people. That decision was just upheld last night by three Trump appointees on the 5th Circuit Court of Appeals.

So we are seeing how a rigged judiciary is leading to rigged elections in this country. And we’re going to see a lot more of this if Amy Coney Barrett is confirmed to the Supreme Court.

JUAN GONZÁLEZ: And, Ari, could you talk about what’s happened in Pennsylvania with the Trump campaign’s election lawsuit there?

ARI BERMAN: Yeah. This was actually an interesting instance, Juan, where a Trump-appointed judge ruled against the Trump campaign. The Trump campaign was seeking to get rid of drop boxes for mail voting; to throw out ballots if there was a, quote-unquote, “mismatched signature”; to allow you to challenge people at the polls, no matter what county you lived in. And the Trump-appointed judge blocked all of these efforts and said the Trump campaign had produced no evidence of voter fraud to justify that. And, in fact, the Trump campaign produced like a 500-page expert report, and they didn’t list a single evidence of voter fraud in these cases.

So, Trump is screaming about rigged elections every single day in his speeches, on Twitter. But when it actually comes to show the evidence of rigged elections, to present the evidence of the kind of fraud he’s talking about, they have no evidence to show. And even some Trump judges are skeptical of this.

We are still waiting, however, for the U.S. Supreme Court to weigh in on whether Pennsylvania’s deadline for receiving mail ballots can be extended, because right now the law says that if your ballot is postmarked by Election Day, it can be arrived after. But the Supreme Court has yet to issue a ruling on that, so we don’t know quite yet what the law will be on that front.

AMY GOODMAN: And then, if you can talk, Ari Berman, about what happened in Georgia? Early voting started yesterday. Some people in Atlanta waited up to 10 hours to vote. And then, in Arizona, the Pascua Yaqui Tribe filed a lawsuit Monday to reinstate the only early in-person voting site on the reservation, which was shut down in 2018, the tribe also seeking a ballot drop-off site for the week preceding Election Day. The lawsuit says the Pima County Recorder’s Office has closed an additional three early voting locations within the Tohono O’odham Nation since 2018. I mean, this vast suppression of the ability of people to go out and vote, especially during a pandemic. But address these two places.

ARI BERMAN: Well, first off, in Georgia, there was record early voting in Georgia yesterday. That was the good thing, that people are motivated to vote. The bad thing is that people waited up to 11 hours to vote in Georgia, which is completely unconscionable. That is a form of a modern-day poll tax, to make someone spend an entire day waiting to vote, when they have jobs, when they have kids, when they have other responsibilities. We already saw massive problems with voting in Georgia in 2018. We saw massive problems in the primaries. During the primaries, the average wait time for communities of color was 51 minutes; the average wait time for white voters was six minutes. So, we are seeing way too many problems with voting in Georgia that continue up to this day. It’s great that people are committed to vote, that they’re willing to try to overcome these barriers, but there’s too many barriers being placed in front of them.

With Arizona, we’re seeing this in other states, where Republicans are trying to crack down on access for Native American communities, who live often very far from their polling place, who don’t have reliable mail service, who have been hit really hard by the COVID pandemic.

So, we have to make it as easy as possible for people to vote this year, in particular because of the pandemic, but we especially need to make it easy to vote for historically disenfranchised and marginalized communities, whether that’s Black voters in Georgia or whether that’s Native American voters in Arizona.

JUAN GONZÁLEZ: And, Ari, could you talk to us about what you envision happening on election night itself? Clearly, it’s unlikely that we’re going to have — or, it’s likely that we’re going to have significant numbers of votes not counted and challenges all across the country in various states. Talk to us about your nightmare scenario and your best-hope scenario.

ARI BERMAN: The best-hope scenario, I’ll start with that, Juan, because I’m trying to be in a glass-half-full mindstate these days, even though it’s hard. The best-case scenario is that we know who wins the election on election night, or shortly thereafter; that it’s an overwhelming margin of victory; and that there’s not as many disputes as we would have expected; and that most people were able to cast a ballot or were motivated to overcome these barriers; that massive turnout was able to beat massive suppression. That’s my best-case scenario.

My nightmare scenario is that it’s very close; that it takes a very long time to be decided; that Donald Trump prematurely declares victory, even though he doesn’t have the power to do that, but the perception will be that he’s going to try to do that; that he’s going to litigate every aspect of this, if it’s close, in places like Pennsylvania and Wisconsin; and that the reason he’s trying to rush Amy Coney Barrett on the court right before the election is so that she will be a sixth justice to hear any sort of dispute, which is a fundamental conflict of interest. He is nominating someone that could then rule on his behalf. And he clearly thinks he needs six justices on the court, because he can’t trust John Roberts as a fifth conservative vote, even though John Roberts gutted the Voting Rights Act and did all these other things that have benefited Republican interests.

So, the Republican Party is desperate right now. Voter suppression is their main strategy. And the way they want to carry out voter suppression is by packing the courts — in particular, the Supreme Court — so they uphold that suppression and install Donald Trump for a second term. That is my nightmare scenario. I hope it doesn’t happen, but that’s clearly what they’re trying to pull off.

AMY GOODMAN: And do you think Amy Coney Barrett, if she were to be confirmed, should recuse herself if it came to the 2020 election being thrown into the Supreme Court?

ARI BERMAN: Yeah, she absolutely should recuse herself, because people are already voting as she’s being nominated. We’re 21 days from November 3rd, but over 10 million people have already voted. By the time her hearing happens, many, many millions of people will have voted. And President Trump has explicitly said that he wants the Supreme Court to look at the ballots. So, everything about Amy Coney Barrett’s nomination is illegitimate, but it’s especially illegitimate if Trump wants to get her on there so that he can install himself in a second term.

And she should say, “I understand there’s a lot of concern about my nomination, about the appearance of my nomination or the timing of my nomination. And to put some of those doubts to rest, I am going to recuse myself from any post-election dispute because of how close the election is, how many people have voted, and what President Trump has said about mail voting, and my own history in Florida” — that Barrett has already done this before. She has already intervened on behalf of Republicans in Bush v. Gore and related cases so that only Republican votes are counted. So, both her history but also the context of her nomination makes it absolutely clear she should recuse herself from any post-election dispute.

JUAN GONZÁLEZ: And, Ari, what do you think the progressives should be looking to do on Election Day itself, on election night? What were the things that you would urge people to look out for and to be prepared for?

ARI BERMAN: Well, first off, I think people should just be prepared for voter intimidation in general. People should know that if they’re in line to vote, they have a right to vote. If there’s any problems voting, people should call 866-OUR-VOTE, which is Election Protection, and don’t let anyone dissuade you from voting.

But in terms of election night, we’re not going to have election night in the traditional way. We’re more likely to have election week or election weeks. And the message has to be it’s more important to get this right than to do it quickly. And it’s more important to count all the votes than declare a premature winner of the election. And so, we have to be patient. We have to approach Election Day like it’s halftime in a game, not like it’s the end of the game. And I think if we do that, I think if we explain to people this is a different kind of election — we’re in a pandemic, a lot of people voted a different kind of way, it’s going to take a little bit longer — that is the system working. That is not evidence of fraud. That is not evidence of cheating. Taking a little bit longer is evidence of the system working, no matter what the president of the United States has to say.

AMY GOODMAN: Ari Berman, we want to thank you so much for being with us, senior writer at Mother Jones, author of Give Us the Ballot: The Modern Struggle for Voting Rights in America.

Again, go to democracynow.org for the live-streaming of the entire Amy Coney Barrett hearings.

And a very happy birthday to our audio engineer Miguel Nogueira! And a happy first birthday to Quentin Woronoff-Rowley!

That does it for our broadcast. Again, democracynow.org is the site for our daily grassroots global election show and the live stream of the Supreme Court hearings.

Democracy Now! produced with Renée Feltz, Mike Burke, Deena Guzder, Libby Rainey, Nermeen Shaikh, María Taracena, Carla Wills, Tami Woronoff, Charina Nadura, Sam Alcoff, Tey-Marie Astudillo, John Hamilton, Robby Karran, Hany Massoud and Adriano Contreras. Our general manager, special thanks to Julie Crosby and to Becca Staley, Miriam Barnard. I’m Amy Goodman, with Juan González. Stay safe. Wear a mask. Save lives.

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