With the expected confirmation of Judge Amy Coney Barrett to the Supreme Court on Monday, Fox News added its voice to the right-wing media misinformation about mail-in voting in Pennsylvania — along with a key case in which Barrett could potentially intervene on the side of President Donald Trump in the election.
Pennsylvania Republicans on Friday renewed an appeal to the Supreme Court after the state’s high court granted an extension for absentee ballots to arrive up to three days after Election Day — a decision motivated by widespread delays in postal delivery — unless there is a “preponderance of evidence” that a ballot was mailed after Election Day. The decision was previously allowed to stand by a deadlocked 4-4 Supreme Court ruling. State election officials have now been urging voters to not take this mail extension for granted and to get their ballots in as early as possible — because Barrett’s potential confirmation could very well tip things back.
Trump has said that he wants nine justices on the Supreme Court in order to avoid a deadlocked decision on any potential election disputes — while at the same time as he denounced mail-in voting by saying, “I think this scam that the Democrats are pulling, it’s a scam, this scam will be before the United States Supreme Court and I think having a 4-4 situation is not a good situation.” Discussing the Supreme Court and the election during the first presidential debate in September, he openly declared, “I’m counting on them to look at the ballots, definitely.”
This pattern of statements by Trump has led ethics experts to conclude that Barrett’s nomination presented a potential conflict of interest, on the grounds that it would “reasonably appear to the public that Trump offered her the job with the implicit understanding that just weeks later she would help him keep his.”
On the Monday morning edition of Fox & Friends, Fox News contributor Newt Gingrich painted a lurid picture of rampant voter fraud in Philadelphia and castigated the state Supreme Court for helping to set up a situation for Democrats “to steal the state.”
“And I think Pennsylvania's going to come down to a straight-up contest: Can the Democrats steal more votes in Philadelphia than the rest of the state casts for Trump?” Gingrich insisted. “And I think it's literally, you watch on election night, it's going to — and now that the state Supreme Court has said you can bring ballots in six days after the election, and you don't have to have a signature — I mean, they have done everything they could to set this up to steal the state and the test will be be if Trump beats him bad enough, they won’t be able to do it. Now, if Trump doesn’t beat him bad enough, they might be able to find enough illegal votes and fake votes in Philadelphia, which historically has had a long reputation as a machine city that votes a lot of folks who may not exist.”
These statements did not receive any pushback from the Fox & Friends co-hosts, but instead received a friendly reception as the conversation went on.
Later on during the network’s “news side” coverage, America’s Newsroom co-anchor Trace Gallagher brought up the potential of this case heading to the Supreme Court with Barrett now on it. Fox News contributor Ken Starr then misrepresented what the case is all about, saying it was an attempt by people to actually cast votes after Election Day, rather than about counting ballots that arrive through the mail after the day itself.
Later, on Bill Hemmer Reports, the eponymous anchor said there was “a chance that Justice Barrett will have to jump right in on a ruling that could affect Pennsylvania.” Fox News contributor Andy McCarthy in turn put forward the idea that the Supreme Court should get involved with this — and quickly.
“They’re imploring the court to decide the case before the election. I happen to think it's very important that they do that,” McCarthy said. “Because if they decide before the election, it's just that they’re setting the rules under which the election will proceed. I'm worried that if they wait for chaos after the election, it will look like the court is choosing the president, which I think no one should want.”
McCarthy also raised a similar specter as Starr did, claiming, “They’re asking for trouble here” of people casting votes after the nationally set Election Day. “If you encourage the counting to go on beyond November 3, while the results are being reported by the national media, it’s an invitation to all kinds of shenanigans,” he added.
“And it becomes worse if, as they have in Pennsylvania, the court decides that presumptively, if you can't prove a ballot was postmarked before Election Day, they’re going to presume that it was,” said McCarthy. “So you have the prospect of people voting after Election Day, when the results are being reported all over the country — even though the election was supposed to have been over on November 3. And that obviously affects the integrity of the result, and invites a lot of fraudulent activity.”
Yet again, the question right now is whether mail delays could lead to the disenfranchisement of people who filled out and set in their ballots before Election Day — not about trying to vote after Election Day.
The Associated Press reported last week that Postal Service data running through October 6 released as the result of a court order found that the agency was continuing to suffer delays, missing the key goal of 95% of first-class mail arriving at its destination within five days. Areas of key battleground states such as Pennsylvania, Michigan, and Wisconsin were among those falling short by especially wide margins.
Trump has also previously admitted that he opposed providing additional funding to the Postal Service because to do so would facilitate mail-in voting. While there is usually no overall partisan difference in absentee voting, interest in it has risen much more among Democratic-leaning voters this year as a result of the coronavirus pandemic. (Polling has also indicated that Democrats are more likely to take COVID-19 seriously than are Republicans.)