ACB: America’s Way of Avoiding the Deep End

Disclaimer: The opinions expressed herein are those of the author and do not necessarily represent those of clay Magazine or TPS.

These days, it seems as if nearly everything is an election issue, and the decision to confirm Amy Coney Barrett into the Supreme Court is no exception.  While many conservatives argue that her nomination and hearing are constitutionally legitimate, Democrats claim that, due to the strange circumstances of an election year, the nomination and hearing ought to be postponed until after the election of the president.  However, regardless of one’s political beliefs, everyone should support her confirmation for America’s sake.

First, this election is contentious, with many on both sides believing that some sort of foul play will ensue on November 3rd.  For Republican voters, the number of people who are voting by mail is concerning since there have been several reports of ballots being lost, stolen, or sold.  The fact that several lost ballots were for President Trump, the more recent example being 8 Trump ballots found in a Pennsylvania office trash can, further legitimizes the fear that Republican ballots could be unworthily trashed.  Since stories, however jarring, have limited value in proving a point, there are several, non-partisan pieces that display the issue with mail-in voting as a whole.  The most glaring of these is a RealClearPolitics report that reveals that between 2012 and 2018, 28.3 million mail-in ballots went missing, which doesn’t even include the areas that didn’t report to the Election Assistance Commission.  It is also crucial to remember that only 24% of voters voted by absentee ballots in 2016, which, though sizable, is dwarfed by the 39% of voters Pew Research Center projects to vote by mail in 2020.  Since it seems probable that missing votes will increase by a similar proportion, missing ballots could increase by 162.5% as long as the ratio between the voter percentages holds.  Regardless of one’s political leanings, everyone wants their vote to be counted.  Despite any attitudes about mail-in voting, these statistics are sound and could be used to contest the election, since 39% of votes are at a higher risk of being lost or subject to fraud.

This leads to a rather simple conclusion: the American people, as a whole, do not trust the results of the election.  No matter what the sticking issue is for any given American, whether it be voting fraud, missing ballots, or the ever-living Russian collusion, the polls reflect negatively on voters’ trust in the results of the election.  An NBC News poll shows this doubt in the final count has spread throughout all parties with 46% of Democrats saying that they are “Not too confident” or “Not at all confident” in the election results, followed by 56% of independents and a whopping 65% of Republicans.  When the voters don’t believe the election is legitimate, there is no reason for the candidates themselves to believe otherwise except for a landslide.  This is echoed by President Donald Trump, who said at the First Presidential Debate that he would ask the Supreme Court to “look at the ballots” if the results are questionable.  Although his opponent, Joe Biden, claimed he “will accept the results” of the election, it would be surprising if, in the event of a close Trump victory, he refused the opportunity for a recount or, in the case of the recount being inconclusive, he asked for the final, most drastic measures to be taken.

What are these drastic measures?  This would bring the results before the Court of Last Resort which, in this case, is the Supreme Court.  The last time it was used in an election was the Bush-Gore election of 2000, which ended when they declared the Florida recount to be unconstitutional under the Equal Protection Clause in a 7-2 decision, leading Bush to an election win.  In the case either or both campaigns sue for a recount and/or a final decision, it would go before the Supreme Court.  Now, despite the Bush-Gore decision being a messy situation, they had one distinct advantage over the court we have now, namely the ability to have a 5-4 decision.  It’s often an advantage that goes overlooked, but the ability to avoid a tie is a deeply needed one, and one our Supreme Court would not have in the event Barrett isn’t confirmed to the Court.  The voter fraud, the lack of trust in the votes, and the likelihood of election lawsuits to question the results would cause turmoil that would only be elevated by a possible 4-4 tie in the Supreme Court.  This turmoil would leave a delay of, in the words of Ted Cruz, “weeks or months” in the final result of the election.  For those who say that this isn’t an issue since conservative judges make up 5 of 8 justices, they don’t consider the unpredictability of Chief Justice John Roberts and Justice Brett Kavanaugh.

The ideological scores of Supreme Court Justices. The scores of Chief Justice Roberts and Justice Kavanaugh reveal the scary possibility of a 4-4 split come election time.
The ideological scores of Supreme Court Justices. The scores of Chief Justice Roberts and Justice Kavanaugh reveal the scary possibility of a 4-4 split come election time. (Photo Credits: Martin Quinn Scores)

Although there should be 3 clear votes for each party’s respective candidates, the ideologies of either of the two aforementioned candidates are not as easy to guess.  In the very possible case they split, then we reach the magical 4-4 number that would bring an election curse on America.

Although the confirmation of Amy Coney Barrett might not be ideal for those of the Democratic Party, it is necessary for America to move on from 2020.  After all, 2020 is bad enough as it is.  There is no need to add more drama.




  1. Excellent thoughts, Andrew! Thanks for writing this 😉

  2. OliverMunzer/omunzer

    great job!

  3. The ideological shift graphs are really interesting! Great job!

  4. This is really interesting

  5. This is really interesting Andrew!

  6. That is weird my browser freaked out and It posted the comment twice! ????

  7. These are great visuals and a thoughtful analytical article! I really appreciated it!

  8. Good points and insight!! Thank you for this and well done! 🙂