Suppose Donald Trump announced prior to November 3 that the election had been “corrupted” by illicit mail voting and would need to be delayed—or that the counting of ballots cast in the election would need to be interrupted.
A crazy notion? No, he’s already signaled his interest in this option. On June 30, Trump tweeted, “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???”
Trump was, of course, lying—a lot. First, the 2020 election is not being conducted under a ubiquitous “Universal Mail-In Voting” model; tens of millions of Americans in states across the country are casting traditional absentee ballots or voting early, and tens of millions more will vote in person on Election Day. Second, there is no evidence that mail-in voting increases voter fraud; in fact, there is ample evidence from states such as Oregon and Washington that this approach provides a secure method for achieving high turnouts and honest counts. When Trump peddles these lies, he seeks to undermine the democratic process by fostering false impressions of an election that polls suggest he is likely to lose.
But if Trump calls a delay, he won’t merely be lying or playing a political card. The president will be violating the law.
The Code of Laws of the United States of America clearly states: “The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.” The same code establishes that elections for the US House of Representatives and the US Senate must be held on that day.
These are not debatable legal points. Nor is the fact the election is held at the start of November in order to meet the calendar requirements of the US Constitution, which stipulates that “the terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.”
The US Code and the Constitution are not untested legal “theories” up for interpretation by wannabe judicial activists. They are the fundamental underpinnings of the rule of law. Agreeing that the election date is “set in stone,” Senate majority leader Mitch McConnell, R–Court Packing, responded to Trump’s June tweet by saying, “Never in the history of the country, through wars and depressions and the Civil War, have we ever not had a federally scheduled election on time, and we’ll find a way to do that again this November 3.”
The election can’t be delayed. Everyone who claims to have regard for the American experiment—Democrats and Republicans, liberals, and conservatives—recognizes this.
Everyone, that is, except Judge Amy Coney Barrett. Unfortunately, she is a consequential exception. If Senate Republicans continue to do Trump’s bidding, Barrett could be planted on the US Supreme Court before November 3.
During Tuesday’s session of the Senate Judiciary Committee’s high-speed hearing on Barrett’s nomination, Senator Dianne Feinstein, the ranking Democrat on the committee, asked the nominee whether “the Constitution gives the president of the United States the authority to unilaterally delay an election under any circumstances.”
The proper response would have been a simple “no, neither the Constitution of the United States, nor the law of land, can be read as affording him that authority.”
Instead, Barrett headed off into the great unknown:
Well, Senator, if that question ever came before me, I’d need to hear arguments from the litigants and read briefs and consult with my law clerks and talk to my colleagues and go through the opinion-writing process. So, you know, if I give off the cuff answers, then I would be basically a legal pundit, and I don’t think we want judges to be legal pundits. I think we want judges to approach cases thoughtfully and with an open mind.
That was such a shocking answer that, on Wednesday, Senator Dick Durbin of Illinois, read the transcript back to Barrett and gave her an opportunity to clarify her remarks. He led her through a line of questioning that referenced the 14th and 15th amendments to the Constitution—which guarantee equal protection under the law and bar the denial or abridgment of the right to vote “on account of race, color, or previous condition of servitude.” Barrett accepted that “the Constitution contains provisions that prohibit discrimination on the basis of race and voting.” But when Durbin pressed her on the issue of denying voting rights by delaying an election, Barrett stuck to her line: “I really can’t say anything more than I’m not gonna answer hypotheticals.”
That was an artful answer meant to cloak her scorching intellectual dishonesty.
Senator Feinstein was not asking Barrett to speak as “a legal pundit.” Senator Durbin was not asking Barrett to engage in hypotheticals.
They were trying to determine whether she recognizes the law as written, and if she is willing to apply it.
That’s the baseline standard that should be expected before confirming anyone to serve as a jurist—on any bench, in any court, at any level from municipal judge to Supreme Court justice.
If Barrett does not know the law, that’s disqualifying.
If she knows the law but is unwilling to apply it because of her loyalty to her political benefactor, Donald Trump, that is even more disqualifying.
As on so many issues that have been raised during this breakneck confirmation process, it is not the Democrats on the Judiciary Committee who are making the most compelling case for the rejection of Trump’s nominee. It is Amy Coney Barrett.