Administrative law is law. It can get in the way of anything made legislatively. All people have to do is read between the lines.
And in-between there, a nightmare is surely developing: The aftermath of the Election of 2020. We know 45 will likely lose the popular vote, and might hold up the results by legal machinations. How do we know this? The controversy surrounding giving women the right to vote exactly a century ago holds some answers.
In a recent article in the New York Times, the author Elaine Weiss (author of "The Woman's Hour: The Great Fight to Win the Vote") specifies the attempts of anti-suffragists to delay, and then to launch into limbo, the ratification of the Nineteenth Amendment to prevent women from voting in the Election of 1920. They used both the possibilities of court challenges and the potential of administrative delays to do so. It literally came down to the last hour.
They tried to restrain the U.S. Secretary of State, Bainbridge Colby, from accepting Tennessee's certification of its vote by making a plea to him, but he rejected it and put in in the mail.
In the mail. Was the mail politicized the way it is today? Fortunately for the suffragists, no. But the mail train still had to get to Colby before the appeal was heard. If not, the appellate court could put an injunction on Tennessee's ratification, so "officially," it wouldn't yet be registered. No registration, no ratification, even though Tennessee's legislature had, in fact, chosen to do so by one vote.
The entire nation might be thrown into chaos, since every other state had already chosen to allow women to vote. The election results everywhere, involving everyone running at that moment, might be invalidated. What then?
The Postal Service, mindful of its federal responsibility, cooperated. It ordered that no matter when the envelope containing the ratification papers arrived, it would be rushed to Colby for his signature. When he signed, it would be official and no other legal barrier would matter.
It showed up at his door at 4 a.m., before the appellate court could convene. One aide was a witness. There are no photos to guarantee it. (I think news coverage would be different this time.) But anti-suffragists weren't finished yet.
They declared that Tennessee still hadn't actually ratified the Amendment, as if claiming so would still make it so (Think that's not going to happen?). The state house speaker recalled his forces back, while suffragists were home, and rammed through a rescinding vote. But you can't legally do that. Once a state ratifies and the sufficient number is reached, ratification cannot be rescinded.
Didn't matter. Anti-suffragists went to the U.S. Supreme Court. That took another two years, even though subsequent elections took place allowing women to vote. It was futile, of course, but under the rule of law, which cuts both ways, justice can grind very, very slowly.
Think now: 45 will, and can, delay the consideration of the election a long time if he loses. Will the Supreme Court allow such a delay past January 20? No doubt they'll try, if they end up losing the Electoral College vote.
What does it mean? It means that, if 45 loses states he's normally supposed to win, he'll cry foul and has an Attorney General to back him up, perhaps automatically. (Indeed, Barr has already claimed that some 1700 mail-in votes are bogus, which isn't true, but he can create a scenario in which it looks to be true.)
This nightmare seems evident. So hang on. The only way to take this schmoe out of office is to defeat him so completely that nobody, not even Fox News, can doubt it. I personally doubt that that will happen.
But NPR has just reported (this is Saturday morning, Sept. 5) that neither 45 nor Biden got much of a 'bump' from their respective conventions. That leaves 45 behind, perhaps too far, immediately future smears notwithstanding.
We will see. But rest assured that 45 will pull out all the possible legalistic stops to delay and bring into doubt the election results, and that some percentage of the electorate will, blindly, agree with him.
It might also mean that a Republican Secretary of State of a state 45's supposed to win has to ratify the results of an election that's been lost. Will there be resistance to that? Will individual states create barriers even more decisive than that of Florida in 2000? Will there be more than one state result making its way into the Supreme Court with just days left before the inauguration? With the Court divided as it is, will justice prevail? Or will people, as Justice Scalia put it afterwards, have to just "get over it"?
What could that mean? Barr has already said that, if the election results are obvious, he would resign. But it also means that if they aren't, according to him, he wouldn't (which he didn't say, disingenuously). That option was not lost on those who heard it and not ignored. He might have to be fired, physically removed, or resist legally, tying up a Biden Administration from performing the policy objectives that a majority of Americans want. That effort to gum up the works could take years.
Our nation will lurch into a Biden presidency as divided as it's always been. As always, every president leaves something behind him. This one will not leave fair play behind, but considering the spaghetti of impeachment, we already know that.
We need to get ready for this. We need to start saying, firmly, that resistance is unacceptable. Easy for us to say, though.
In the book "How Democracy Dies," the authors make it clear that members of the party in power must cross over and deliver a relief to this attempt at authoritarianism. So far, we're seeing a few significant Republicans do so. But on the bottom line, officeholders such as state Secretaries of State must also do so, or the nation will divide, perhaps irrevocably. That moment is unquestionably arriving. Nobody wants to think about this, but we'd better start right now.
This train is arriving at full speed. We will see if there's someone at the station willing to apply the brakes, as they did a hundred years ago.
Democracy lasts only if those attending to it allow to do so. We will see if that continues. There's no assurance that it will.
Be well. Be careful. Wear a mask. With some luck, I'll see you down the road.
Mister Mark
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