As one could read on a wall in Bologna back in 1977, the apocalypse can also come an inch at a time. For American democracy, the death of Ruth Bader Ginsburg only 45 days before the presidential elections is both a tragedy and, at the same time, a sign that this process is entering its final phase. The revelation about whether American fascism will consolidate its power or not will come in the night between November 3 and 4, when Donald Trump will falsely claim to have won the election if the first partial results seem to be in his favor, or he will shout that a giant electoral fraud is underway, if the vote count shows a majority for the Democratic candidate Joe Biden.
This is a strategy that the outgoing president developed months ago. Thanks to the mechanism of the Electoral College in the United States, it is possible to win the presidency while collecting 3 million fewer votes than his opponent. This already happened in 2016.
How does one win elections even though one is in the minority? For example, by preventing Biden supporters from voting under various pretexts, and by having the restrictive voting regulations validated by friendly judges (Trump has appointed 200 of them since he took office). For example, in Florida, a referendum had returned voting rights to former prisoners, but the state legislature, with a Republican majority, passed a law that said only those who had also compensated the families of the victims of the crime can actually vote: a lawyerly trick to circumvent the will of the people and disenfranchise more than a million people, mostly African-Americans and Hispanics. The majority on the Supreme Court let this law stand.
In many states, numerous electoral polling stations have been eliminated (which were already few to start with, compared to the actual needs), with the aim of causing long queues at the polling stations: quite a disincentive to do one’s civic duty in times of an epidemic. These attacks on the right to vote have been accompanied by the obsessive drumbeat of propaganda against voting by mail, falsely accused of being an instrument of fraud. Trump and Senate Republican leader Mitch McConnell’s haste to appoint and install a new judge to replace Ginsburg comes from their intention to create a majority on the Supreme Court that would approve anything whatsoever.
This year, everything revolves around voting by mail, which will be the preferred method used by Americans in the states that have authorized it: it is estimated that at least 80 million voters will use it.
It is not certain, however, that these 80 million votes will actually be counted: they must arrive on time, the signatures must match and the postmark must be valid, i.e. no later than November 3.
But a ballot sent on November 3 could very well arrive on November 6, or 10, or 15, which makes it certain that tens of millions of votes will not have even arrived yet on the night of the election, let alone been counted.
This will create thousands of legal battles that will have to be resolved by judges.
In the event of disputed election results, in the end it will be the federal courts and the Supreme Court who will decide who will take office at the White House, as they did in 2000, when the Court prevented a recount of Florida’s votes that would have benefited Democratic candidate Al Gore and thus handed over the keys to the White House to George Bush. It was a preview of a scenario that has become even more likely this year, with Donald Trump repeatedly stating that he might not accept the outcome of the election.
If Trump and McConnell are able to appoint another judge that shows them absolute loyalty, the Republicans might not only get the petty orange dictator to stay in office, but would also secure a 6-to-3 majority on the Court for the coming decades.
On Saturday, Trump already announced that he would appoint a new judge as soon as possible, and he certainly has a long list of prospects prepared: Ginsburg’s health condition had been known for years. It remains to be seen whether the 45 days until the election will be sufficient for the new nominee to be pushed through the Senate, where the Republicans have a majority of 53 seats against 47.
The hopes of the Democrats hang on three uncertain Republican votes: Mitt Romney, Lisa Murkowski and Susan Collins. While the first is strongly hostile to Trump, the other two usually grumble but eventually toe the line, so it is perfectly possible that a sixth conservative judge will take office by November 3, or in the days immediately following the election (since the Senate remains in office until December 31).