Lost in the shuffle with Kennedy's retirement from the Supreme Court is the growing importance of the courts in resolving the outcomes of our increasingly complicated and fractious elections. Last fall I wrote a piece for the Washington Post attempting to clarify the seemingly confusing question of why the President would attempt to undermine confidence in the integrity of an election that he won. The takeaway point is that undermining Americans' faith in the electoral process is one of the basic goals of the Trump "movement" because when that faith disappears, then "no one really knows" who won any given election. And once every election outcome is treated as an open question, the outcome ends up being either heavily influenced or outright decided by the permanent, non-elected institutions of the state: courts, bureaucracy, and, in truly failed states, the military.

I mentioned in Episode 006 of the podcast that the growing chasm between how our system is supposed to work on paper and how it works in practice is one of the symptoms of a failing state, or at the very least democratic backsliding. Elections decided (or influenced) by something other than an actual count of the ballots cast are another symptom. Trump is setting up an insanely dangerous dynamic wherein the only way we can know if an election was fair is if Republicans win – that is, victory by the right is sufficient evidence that the insidious forces of liberalism were thwarted in their many efforts to rig the election. If the right loses, conversely, then that is sufficient evidence that the election was rigged against them.

The short-term outcome is that American courts are likely to be called upon again, as they were in 2000, to resolve election outcomes in this new poisoned-well dynamic. Bear that in mind when realizing how Trump is reshaping the Federal courts.

Then go have a couple drinks.


  • I agree with what you say, except to point out that it is nothing new for Republicans to cast doubt on any election they lose. The grumpy white-haired Fox News viewers regularly explain away any Democratic election victory as either stolen by the Democratic "machine" or fraudulent multiple voting by immigrants and people of color. This has been going on since Clinton won in 1992 and the Rs kept going on about how "57% of the voters voted against Clinton." When 2000 happened, they celebrated it as a triumph of our finely-tuned constitutional system without missing a beat.

    A significant number of our fellow citizens would accept an election system that regularly produced Republican wins across the board as evidence of its honesty and integrity.

  • A couple of the rightwingers I know personally are very given to paranoia that in "certain neighborhoods" (never explicitly spelled out which, but let's use our imagination) the people are not above voting multiple times, and that a whole infrastructure of buses and payoffs exists in the Democratic party to make it happen. Cited as bulletproof proof: Chicago 1960, which Kennedy won through Daley subterfuge, I guess? I know little about its specifics, tbh, and here's why: 1960 was 58 years ago. I once pointed out to my rightwingers, Hey, in 1960, would it have seemed ridiculous to you if someone cited as proof of a 1960 crime an incident in the year 1902? And they looked nervous but swore they would have taken this 1902 charge with full seriousness — and then in the panic, they brought up ACORN, an organization they stated was the current official vote-fraud wing of the DNC — stated with a firmness unmitigated by how poorly they recollected actual specifics about why ACORN was in the news.

  • Yes, I have had Chicago and 1960 thrown in my face many times over the years. Your comment reminds me that I was hearing about it from my Republican friends as far back as my college years, during the *Carter* Administration. They took it as an article of faith that the then-liberal icon JFK had stolen the presidency from poor, endlessly-abused-by-snotty-liberals Richard Nixon. A couple of fun facts I used to like to mention: 1) Kennedy indisputably won the popular vote, so how awful a "theft" was this, again? and 2) if Illinois *had* gone for Nixon, the 1960 winner would have been…Kennedy, who had enough electoral votes to get over the top even without Illinois. But since when do these people let facts get in the way of a good "liberals and Democrats ruin everything" narrative?

  • The whole Nixon-win-Illinois lie is blown up by the fact that Nixon gave up once it was clear that any investigation of Illinois shenanigans would have uncovered the dirty tricks the GOP pulled downstate.

  • Shit…a common RWNJ talking point is that Democrats were the original "party of slavery"… during the Civil War. The fact that it was 155 years ago and that the Democrats dominated in the former Confederacy (which was totally not about slavery, it was about states' rights and heritage, remember?) before promptly flipping teams when Nixon stuck the landing beautifully using the "Southern Strategy" doesn't mean a damn. It's an incredibly stupid and meaningless thing to say. Changing your name doesn't make you a different person–but that doesn't stop conservatives from bringing up irrelevant things from the past to try to justify their self-serving bullshit.

    Isn't it interesting how statutes of limitations only apply to certain things, like paying backed wages and sexual assault, while they don't exist on re-litigating elections and manufactured grievances-past? And it's always on conservatives' terms?

    The best way to respond to something along the lines of, "Well, the Democrats did ____ in 1960…" is, "That's a fucking red herring and you know it. Stick to the subject," then refuse to engage that topic. They're banking on distracting you with something entirely irrelevant so they don't have to own up to being called out.

  • "That's a fucking red herring and you know it. Stick to the subject," then refuse to engage that topic.

    I wish this would work. But during Garland, I was treated to multiple Republican lectures about Bork. The lecture theme was always "SCOTUS confirmation hearings used to be respectful affairs, but against Bork, the Democrats acted heinously, in ways that should never have been tolerated, so… now we can too and it's not our fault." I felt embarrassed enough listening to this reasoning; I can't imagine how they espoused it. But a "Please stick to the issue" charge won't work against the shameless; they slip right into Bork dudgeon and claim 1987 is the issue. It's weird.

  • Ron Wyden (D) of Oregon tweeted that he introduced legislation to make ballots paper to ensure election integrity. Not a problem in Oregon (all paper/vote by mail), but a big problem that needs to be addressed nationwide. Lots of agreement from the twitterverse until, scroll, scroll, scroll “ILLEGAL IMMIGRANTS!!!1!” “VOTER ID!!!1!!!one!!!” “DEMS (somehow)USING THIS TO CHEAT!!!” I’m sure if I were to check back the 1960 Illinois election would come up. But I’m not checking back because it’ll only tempt me to argue with idiots on the internet.

  • I am really bummed out by how your increased social media presence and publication has led to fewer posts and much-decreased commenting, Ed. Don’t get me wrong, I’m happy for you. Just a little bummed.

  • @ Gromet:

    Is why was necessary to have Yakov Okiefsky bravely be pimp in video!

    @ Aurora S:

    "That's a fucking red herring and you know it. Stick to the subject,"

    I'm gonna be goin' with, "That's a fucking lie.".

  • Don't ever forget the role the MSM had in legitimizing a president-elect. Al Gore was roasted for even thinking about challenging the results in Florida in 2000; the MSM wanted a president, god damn it, and if it was the guy who wasn't legitimate, that'was no skin off their noses.

  • If the recurrent pattern of American electoral politics is going to be, Democratic Presidential candidates get millions more votes but lose the EC, Democratic Congressional candidates get millions more votes but remain in the minority because of partisan gerrymandering, and Democratic Senators represent tens of millions more constituents but remain in the minority because the 500K people who live in Wyoming get as many Senators as the 55 million who live in CA, it is only a matter of time before the left gets angry and armed and another civil war ensues. Tyrannical minority rule is not a sustainable model of governance.

  • @ rosiesdad

    A much better solution is if Elon Musk, et al. opens a factory in Wyoming manufacturing widgets and doubles the states population and flips it blue. Barring that, with work from home it’s not hard for some professions to move.

  • CambridgeKnitter says:

    Re Bork and Garland, let me recommend a column from the Boston Globe's resident usually-missing-the-point right-wing columnist Jeff Jacoby, https://www.bostonglobe.com/opinion/2018/07/10/anthony-kennedy-answered-tough-questions-judge-kavanaugh-should-too/2gRTaTYRFCa1wKthBfAeFI/story.html. "If Article II’s 'advice and consent' directive means anything, it means that the Senate must undertake genuine due diligence — not just going through the motions of interviewing the nominee, but probing deeply into his legal views. How can senators make up their minds on whether to invest Kavanaugh with the immense power that comes with a seat on the Supreme Court unless they make it their business to understand what he would do with that power?" Every so often, Jeff Jacoby forgets that he's a right-wing hack and writes something worth reading. This is one of those times.

  • The 2020 election is already lost. Democratic candidate wins by 50 EVs, but wait, not so fast, Republicans allege electoral fraud in Florida and Michigan, present some nonsense evidence, courts rule however they rule, appeal to Supreme Court… Supreme Court declares Trump wins. Media piles on Democratic candidate, who meekly slinks away into the history books.

    You know it's coming.

  • I'm more, or less, beyond words, with the whole mess, at this point. From an early age I've understood that politics are dirty pool on some level. But to watch a group of people and powers, wrap themselves in the flag, screaming anti-iceberg, and steer toward the iceberg while a bunch of mindless idiot cheer them on for combating icebergs, is just…I don't have a way to articulate it.. I don't understand how a person can scream and rant, and go on endlessly about freedom and liberty, blahblahblah. While also giving full-throated endorsement to the undermining of the rule of law, and cheering on the efforts to establish an authoritarian state. I realize part of it is an inability to…well…to stop thinking. But still…

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