Ignore The Polls, Watch The Courts

And prepare for shenanigans.

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In 2020, Trump and his allies filed 62 suits trying to overturn his loss. The upshot was 61 losses and one partial win when the Pennsylvania Supreme Court said that poll watchers could stand a few feet closer to the action as ballots were being counted. In short, the dam held.

In part, that’s because Trumps lawyers sucked. Rudy Giuliani’s performance in federal court in Pennsylvania, the only case where he actually entered his appearance, contributed to his eventual disbarment. Jenna Ellis, Christina Bobb (now head of election integrity at the RNC), and the various Krakenlawyers wriggling around under the supervision of Sidney Powell were spectacularly ineffective. And thank God for it!

This go round, the GOP seems to have staffed up for a litigation blitz. The RNC, under the aegis of the candidate’s daughter-in-law Lara Trump, appears to be devoting most of its energy (and money) to filing lawsuits, rather than propping up down-ballot candidates. Apparently they’ve filed complaints in all 81 states! (Delaware, plasma, bliss … ?)

Luckily they have Elon Musk for GOTV, LOL.

Democrats have also upped their game.

“We have assembled a robust legal and voter protection team with a proven track record of winning fights to protect voters' ability to make their voices heard,” DNC spox Alex Floyd told Newsweek. “With more than 100 voter protection staff across key states and tens of thousands of volunteers, we're ready to stand up for all eligible voters' access to the ballot box,"

But perhaps most importantly, state and federal judges are girding their robed loins for the onslaught.

If the courts can be faulted for their handling of the 2020 election cases, it may be for treating them like “normal” disputes, rather than threats to democracy that must be prioritized. This allowed political actors to treat the pending litigation as evidence that their bogus fraud claims had merit. One of the ways that the Trump campaign hoodwinked local Republican officials into serving as fake electors was by promising them that the fraudulent certificates they signed were actually “contingent” on those doomed lawsuits reallocating Biden’s electoral votes to Trump.

But as Reuters’s Nate Raymond reported last week, the judiciary is making explicit plans to accelerate election challenges this cycle and avoid a repeat. Court officials in Arizona, Michigan, and Pennsylvania seem particularly intent on getting those cases decided before the December 8 “safe harbor” deadline to ensure that there will be no confusion when the Electoral College certification takes place on December 17th as required by 3 USC § 5.

The Pennsylvania Supreme Court, which flipped to Democratic control in 2023, has been most aggressive, issuing a per curiam order mandating a vastly streamlined process for “matters arising under the Pennsylvania Election Code with respect to the November 5, 2024 General Election.”

• The ten-day appeal period is reduced to three days;

• Cross appeals must be filed within three days;

• Weekends and holidays will count toward these shortened deadlines;

• “Answers to jurisdictional statements and petitions for allowance of appeal, and separate motions to quash or dismiss appeals, will not be received in these matters;”

• “Any objection to the propriety of the appeal, including questions surrounding the appellate court’s jurisdiction, are to be raised in the appellees’ merits briefs;”

• Appellants have 24 hours from noticing their appeal to file a brief;

• Appellees have 24 hours to reply to the appellants’ brief;

• There will be no reply briefs without permission of the court;

• There will be no motions for reconsideration or reargument; and

• Appeals will be transmitted immediately

In short, these guys are not screwin’ around and do not intend to allow their institution to be used to steal an election.

Swing state judges are already adjudicating disputes in record time to minimize conflicts going into election day. For instance, in August, after MAGA loons took over the State Election Board in Georgia, they passed a slew of rules that would slow down the certification process and make it easier for local officials to gum up the works with dubious “investigations.”

The original challenge was filed on September 11; the trial judge issued an injunction on October 16, blocking the rules from going into effect; the RNC asked the Georgia Supreme Court for expedited review and a stay of the injunction (meaning the rules would be allowed to go into effect); and on October 22, the high court unanimously denied the motion, ensuring that the argument will take place long after the election. Disaster avoided!

And yesterday the Pennsylvania Supreme Court resolved a lingering challenge related to the state’s byzantine absentee ballot rules, which require an outer envelope, an inner security envelope, and a precise combination of signatures and dates that the legislature purports to believe will cut down on fraud. This has proven itself to be trap for the unwary, and the issue of whether a voter who missed one of the steps should be able to “cure” their ballot was heavily litigated the last time around. (Answer: Pennsylvania state officials may allow a voter to cure, but do not have to.)

This time, during the April 2024 primary, two voters forgot to include their inner security envelopes, and thus their ballots were invalidated. They showed up at the polls on election day and cast provisional ballots which were later rejected by the county election board on the theory that they’d already voted, even though those votes were thrown out. The voters sued, and the RNC intervened, because throwing out otherwise-valid votes is very much their bag, baby.

The Court ruled 4-3 that provisional ballots must be accepted when voters have failed to successfully vote absentee:

Appellants fail to offer any explanation as to how their interpretation… is in any way designed to prevent double voting, and they also fail to explain how their interpretation furthers the broader goal of the Election Code to enfranchise, rather than disenfranchise, voters. Instead, Appellants’ interpretation ignores the availability of provisional voting and manufactures an absurdity whereby we must accept that the General Assembly intended to wholly disenfranchise a voter on account of a mistake with their Return Packet for no discernable purpose.

Changes to the Electoral Count Act enacted in 2022 are another cause for optimism — or at least dialing back the panic. After the debacle of 2021, Congress clarified that, NO, the vice president doesn’t get to choose which electoral votes to count. But also the legislators provided for efficient federal review of disputes over state electors. Candidates are entitled to a fast-tracked hearing before a three-judge panel consisting of two Circuit judges and one District judge. And, just in case Trump and his goons get any bright ideas about making a beeline for some FedSoc toady, venue is located in the federal District that encompasses the state capital. Appeals go directly to the Supreme Court.

And, yes, the Supreme Court is a partisan Republican organ right now. We’ll have a long podcast tomorrow on Trump’s plan to recreate Bush v. Gore if he finds himself tied or narrowly behind in a few states. But in 2020, the conservative justices summarily brushed off Trump’s efforts to steal the election and reject swing state ballots. And right now, all levels of the judiciary appear to be battening down the hatches to avoid a repeat of the chaos.

It’s gonna be ugly. But at least this time, we’re ready.