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“Drop Your Ballot Off”: Supreme Court Rulings on Mailed Ballots Sow Doubt on Which Votes Will Count

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A record 76 million people have already voted in the U.S. election, but the battle over the counting of mail-in ballots continues, with the Supreme Court issuing rulings on how long after Election Day ballots can be counted in the battleground states of Wisconsin, North Carolina and Pennsylvania. We speak with Mother Jones senior writer Ari Berman, author of “Give Us the Ballot: The Modern Struggle for Voting Rights in America,” who says the Supreme Court could yet decide who wins the presidency if a close result leads to legal challenges. “My message to voters in these states and other states is drop your ballot off,” says Berman. “Don’t leave it to chance that your vote could be thrown out.”

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

AMY GOODMAN: A record-shattering 76 million people have already voted in person or by mail in the 2020 election, but the battle over the counting of mail-in ballots continues. On Wednesday, the Supreme Court decided two major related cases, ruling swing states Pennsylvania and North Carolina can accept absentee ballots in the days following Election Day — well, at least for now. In the Pennsylvania case, the justices refused to take up a plea from Republicans to overturn a ruling by the Pennsylvania Supreme Court to count ballots received up until three days after the election if they’re postmarked by November 3rd. But the justices could still consider the Republican challenge again after the election. All ballots received after November 3rd will be segregated from other ballots. In the North Carolina case, the justices let stand a lower court ruling allowing the state’s Board of Elections to extend the deadline for counting ballots to nine days after Election Day. Justice Amy Coney Barrett, who was just sworn in this week, did not take part in either case.

The rulings follow the Supreme Court’s Monday 5-to-3 decision that mail-in ballots in Wisconsin can be counted only if they’re received by Election Day. Justice Brett Kavanaugh joined the conservative majority, writing a concurring opinion that alarmed voting rights advocates after he claimed counting ballots received after Election Day could create, quote, “suspicions of impropriety” because they could “potentially flip the results of an election,” he wrote. In a rare move, Kavanaugh changed a line in his opinion Wednesday after facing criticism for falsely saying that the state of Vermont had not changed its voting rules due to the pandemic. Kavanaugh issued a revised opinion, changing the phrase “ordinary election rules” to “ordinary election deadline rules.” He made the change without comment or explanation, but it came after Vermont Secretary of State Jim Condos tweeted he had formerly requested a correction to what he called the, quote, “erroneous claim by Justice Kavanaugh that Vermont has not changed voting procedures for the 2020 Elections due to COVID-19. When it comes to issuing decisions on the voting rights of American citizens, facts matter,” the Vermont secretary of state wrote. This is Condos [sic] in an interview earlier on CNN.

RICHARD PILDES: Policymakers should consider extending these deadlines, given the massive volume of absentee ballots we’re going to get. Some states have done that. Most states have not. Most states do still require absentee ballots to be received by election night to be treated as valid votes.

AMY GOODMAN: For more on the significance of the Supreme Court rulings and how early voting is playing out across the country, we’re joined by Ari Berman, senior writer at Mother Jones, author of Give Us the Ballot: The Modern Struggle for Voting Rights in America, his latest Mother Jones piece, “Brett Kavanaugh Lays Out a Plan to Help Trump Steal the Election.”

Ari, welcome back to Democracy Now! Explain these Supreme Court decisions that just took place yesterday and in the last few days.

ARI BERMAN: Hi, Amy. Good to be back.

So, there were a flurry of decisions from the Supreme Court. And it’s very unusual for the Supreme Court to be hearing cases about voting rules in which tens of millions of people are already voting, and the Election Day is only a week away. And so, there were three major rulings. In Wisconsin, the Supreme Court said that ballots must be received by Election Day. But in Pennsylvania and North Carolina, they essentially said the opposite, which is that in Pennsylvania, ballots postmarked by Election Day could be received three days after; in North Carolina, ballots postmarked by Election Day could be received up to nine days after.

But these victories are only preliminary victories. In the Pennsylvania case, Samuel Alito basically said Pennsylvania Republicans should try to challenge this after the election; we might throw those ballots out — which is stunning that you have a justice on the Supreme Court basically saying, “Come back to us, and we’ll throw those votes out,” that are going to be disproportionately cast by Democrats, that are going to be legal under Pennsylvania law.

And so, my message to voters in these states and other states is drop your ballot off. It’s too late to mail your ballots back in states like Wisconsin that have Election Day deadlines, and 30 states have a deadline of Election Day for when your ballot has to be received. But even if you live in a state like Pennsylvania and North Carolina, don’t leave it to chance that your vote can be thrown out. If you drop your ballot off or if you vote early in person or on Election Day, there is certainty that your votes will be counted. You do not have that same certainty, given the composition of the Supreme Court, with ballots arriving after Election Day.

NERMEEN SHAIKH: In a recent article, you wrote that Republican efforts at voter suppression may actually be backfiring. Could you explain?

ARI BERMAN: Yeah, Nermeen. That could be a really fascinating subplot to this election. Voter suppression has been the dominant storyline of the election, the efforts to make it harder to vote. But I do believe it’s having a backlash in terms of motivating Democrats and voters of color to show up in record numbers.

Trump has been so brazen about the suppression, talking about sabotaging the post office so people won’t be able to vote by mail, saying he won’t commit to a peaceful transfer of power, saying he doesn’t want votes to be counted; and then at the local level, things like in Texas, where the governor of Texas, Greg Abbott, said that there can only be one location to drop your mail ballots off per county, so that in Harris County, Texas, instead of 12 places to drop your ballot off, there’s only one, in a county that has 2.4 million registered voters, is larger than the state of Rhode Island and has more people than 26 states.

Texas Democrats and Democrats across the country heard these messages, and they said, “If Republicans are trying so hard to attack my right to vote, my right to vote must matter. And the most important thing for me to do is to vote in record numbers and to vote early, so my votes can’t be thrown out.” So I believe the record turnout we’re seeing all across the country, but particularly in states that have been hit hard by voter suppression — in Georgia, in Texas — is sparking a backlash from voters that are angry that their right to vote is under assault, and are determined to make sure their votes are counted.

NERMEEN SHAIKH: And could you talk, Ari, about some of your concerns regarding Amy Coney Barrett, her record on voting rights, and what role she might play in the event that this election is disputed, as many are anticipating it will be?

ARI BERMAN: I’m extremely concerned about Amy Coney Barrett’s record on voting rights. At her confirmation hearing, she refused to answer very basic questions about the protection of the right to vote. She refused to say whether voter intimidation is illegal, which it is. She refused to say whether the president of the United States had the power to delay the election, which he does not. She refused to acknowledge the continued existence of voter suppression, which everyone knows still exists. So she refused to answer these very, very basic questions about voting rights. She has written opinions in the past that are very concerning, saying, for example, that people with past felony convictions should be able to own guns but not be able to vote.

And she comes at a moment when President Trump is saying that he wants her confirmed to the court so she can be the deciding vote to challenge the counting of ballots, which is just so incredibly disturbing in a democracy, that you would appoint someone on the court with the express purpose of her not counting votes that are cast by your opponent, and so the prospect of her, first off, not recusing herself, even though she was confirmed just eight days before the election, which, at the time, 60 million people had voted, but then the fact that she could be the deciding vote on one of these cases.

And the last thing I’ll say about Amy Coney Barrett is, Amy Coney Barrett, Brett Kavanaugh and John Roberts all worked on the Florida 2000 recount for George W. Bush. So they all have a track record of doing whatever it takes to count Republican votes, but stopping Democratic votes from counting. And that’s exactly the situation President Trump wants to happen again.

AMY GOODMAN: And in addition to that, Ari, Clarence Thomas is the only remaining judge who gave the election to Bush in 2000. And you add to that these three Supreme Court justices, as you said — Roberts, Kavanaugh and Barrett — who are veterans of the Bush legal team in 2000, Bush v. Gore, so to get to five they only need one more vote. And you’ve got the ultraconservatives Gorsuch and Alito.

ARI BERMAN: Exactly. So, Amy, it’s not hard to imagine another Bush v. Gore scenario. And the really shocking thing about Brett Kavanaugh’s opinion in the Wisconsin case, which was so sloppy and so inaccurate, was that he actually cited Bush v. Gore in his opinion. And the Supreme Court in Bush v. Gore explicitly said don’t cite this as a precedent. So, Kavanaugh not only cited the case as a precedent when the Supreme Court said not to, it had only been cited once in 20 years, by Clarence Thomas. And then Brett Kavanaugh, who worked on the Florida 2000 recount for George W. Bush, cites Bush v. Gore as a precedent for potentially throwing out Democratic votes in the future.

So they’ve been very open about their plans here. The Republican Party wants to rerun Bush v. Gore. They want to litigate this election in every way possible, and they want to throw out votes cast by Democrats, and they want the Supreme Court to once again declare a Republican president the winner of the election. I think that would lead to the biggest legitimacy crisis in American politics in our history, at least in our modern history. And so, everyone needs to be aware of what the Supreme Court is trying to do, and they need to vote in record numbers — they need to vote in record numbers early — so they can’t challenge these late-arriving ballots or other things like they want to do.

AMY GOODMAN: Ari, I wanted to correct something in our lede. We misidentified Vermont Secretary of State James Condos, who, of course, wrote to Kavanaugh to correct his concurring opinion early in the week. The person who actually spoke on CNN was NYU professor Richard Pildes. But it was Condos who demanded a correction and got one from Kavanaugh. Talk about the significance of that and how rare that is.

ARI BERMAN: It’s just so incredibly sloppy. I mean, Supreme Court justices have clerks for a reason. And they’re supposed to be factual in their analysis. And not only was Brett Kavanaugh wrong on the merits of this Wisconsin case, he was factually inaccurate. He said, for example, that states like Vermont had not changed their election procedures in response to COVID, when in fact Vermont has sent ballots to all registered voters to make it very, very easy to vote by mail, which is the very kind of thing that the Trump campaign is opposing.

And so, I believe that Brett Kavanaugh’s opinion in this Wisconsin case was a form of election interference. He was trying to delegitimize the counting of votes, because the most disturbing part of Brett Kavanaugh’s opinion, in addition to all the factual errors, was when he said that votes counted after Election Day could lead to “suspicions of impropriety.” That’s simply not true. Every single state counts votes after Election Day. Votes are not certified until at least a week after the election in nearly every state of the country. Military ballots frequently come in after Election Day. And, in fact, during the Florida 2000 recount, Brett Kavanaugh took the position that military ballots, which lean Republican, should be counted in Florida even after they arrived after Election Day. So, Kavanaugh is making a completely different argument now than he made during the 2000 Florida recount for George W. Bush. There’s no consistency. And he is laying the groundwork to help President Trump try to steal the election. That is absolutely chilling that a Supreme Court justice would do that.

NERMEEN SHAIKH: Ari, what will you be watching most closely on November 3rd? And what do you think we’ll know by the end of the night?

ARI BERMAN: So many things, Nermeen. Where to start? I mean, obviously, I’m going to see what the turnout is like. So many people have voted early already that we don’t know how many people are actually going to show up on Election Day. I’m going to see how many people were, for example, planning to vote by mail but didn’t get their mail ballots, and so had to vote on Election Day. I’m going to see what the lines look like. I’m going to see whether there’s voter intimidation, whether the Trump administration or vigilante groups are trying to challenge people’s right to vote at the polls.

And then I’m going to see how long it takes to count the votes. In some states, like in Arizona and Florida, they start — and North Carolina — they start counting votes early. But in the three most important battleground states — in Michigan, Pennsylvania and Wisconsin — they cannot start counting votes early. Michigan, they can start a day earlier, but Wisconsin and Pennsylvania, they can’t actually start counting votes until Election Day, meaning it’s going to take some time. It might take a day, two days, three days. In Michigan and Pennsylvania, they say they probably will have results by the Friday after the election.

So we’re not going to have a, quote-unquote, “election night” in the traditional sense of the word. It’s going to take a little bit longer. And the message from the media has to be: We need to count all the votes, and it’s more important to get it right than to do it quickly, and that Donald Trump or any other candidate doesn’t have the power to prematurely declare themselves the winner of the election. This is done at the state and local level. It’s going to take a little bit of time. And we’re just going to have to adjust to that new reality.

AMY GOODMAN: And I want to let people know that we’re going to be doing a special on Tuesday night, November 3rd, from 9:00 Eastern time until midnight. Not clear that any final results will be in, though maybe a number of other down-ballot races will be in. That’s 9:00 to midnight. You can catch it at democracynow.org, or possibly your local station, wherever you’re watching Democracy Now!, will be airing it, as well.

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