This will rub against the grain of that great number of conservatives who believe the Supreme Court punted in the Texas vs. Pennsylvania case instead of doing its job. Most in this camp see the Court’s job as defending the Constitution by agreeing with them that Joe Biden’s election was the result of one, or several, nefarious and corrupt schemes engineered by: the Democrat party and interest groups; the NeverTrumpers and RINOs in the GOP who wanted to be rid of President Trump; and the “Swamp/Deep State” which has always viewed Trump as a threat to its behind-the-scenes control of the national agenda and levers of power in the government.
Let me note that I do not believe the anonymous report of the Justices shouting behind closed doors. If Justices Thomas and Alito had substantive reasons for wanting the case to be heard, one of them would have written a dissenting statement on the Court’s vote to not allow Texas to file its complaint. They wouldn’t have needed to go into detail to make their point. Further, both did write that they would have allowed the complaint, but not the preliminary injunctive relief that was requested, meaning that neither was convinced of Texas’ likelihood to prevail on the merits of what was alleged in the motion and attached documents.
I am sympathetic to those who believe there to be markers of fraud or corruption in the way the election was conducted and the votes were counted in some areas around the country. My view is that proof of fraud and invalid votes being cast is more readily available by focusing on dubious voter registrations combined with mail-in ballots for those questionable voters. The massive expansion of mail-in voting due to the COVID-19 pandemic concerns was a gift from heaven for the Democrat party because it increased voter participation (whether valid or not) in ways that simply cannot be verified in the short time frame between a Presidential election and the mechanics of the Electoral College coming into play.
With millions of potential mail-in voters gifted to them by panic over mass spreading of COVID-19 through crowds at public polling stations, it was only a matter of weakening the verification methods written into the statutes expanding mail-in voting that stood between the Democrat party and potentially millions of additional votes. That was done in some measure through lawsuits, but mainly through the reality that in places where it mattered, partisan Democrats oversaw employment of those “verification” measures. But using them meant more dubious voter ballots would get excluded—Democrat ballots. So, they just did not use them as intended, a fact reflected in the ridiculously low disqualification rate for non-matching signatures.
I am not going to detail here my concerns about the allegations involving Dominion Voting Systems. Before the election I wrote about expert testimony by voting system security experts hired by Democrat litigants in Georgia who detailed all the vulnerabilities of the Dominion system, and a host of things Georgia should not do, that Georgia went on to do. I think it was a mistake for Trump partisans to make so much out of the Hugo Chavez/Venezuela claims, as they didn’t strengthen the case regarding Dominion’s vulnerabilities. But those claims did allow detractors to wave it all off as some crackpot conspiracy theory.
At the same time, I am a strong believer in the “China is the Evil Empire” foreign policy viewpoint, and I put nothing past the CCP in its willingness and ability to manipulate the vote outcomes—especially when it was made so easy for them.
So then why did the Supreme Court not want to go down the road laid out by Texas’ claims? The Supreme Court is not a “White Knight saves the Princess tied to the railroad tracks” kind of institution (to mix a couple of metaphors.)
In my view, whenever the Court looks at an extraordinary and novel legal problem laid at its feet, the first obligation is to do no harm. Anything the Court does is a matter of record from that day forward. Quick reactions to emerging legal problems that have never been addressed before will almost invariably create unforeseen collateral consequences for years or decades.
Look no further than Bush vs. Gore. Notwithstanding the fact that the Court emphasized that its holding was unique to the facts of the case before it, and therefore should not be extended to different circumstances in other cases, the holding in Bush vs. Gore has been cited and cited improperly in thousands of cases in the two decades since. The opinion in Bush vs. Gore is probably used in connection with the phrase “That was not the holding of the Supreme Court . . .” in more than any other Supreme Court case decided in the last 50 years.
The first question that likely crossed the minds of every one of the nine Justices was, what comes next? What will we have unleashed if we tell the states that they can sue each other for the manner in which they conduct their elections whenever they are disappointed in the outcome? Who thinks New York and California would stand by while red and purple states in future elections drift further away from any consensus on their progressive/socialist policies? The answer is a big unknown.
The second question they likely asked themselves was what will happen if we decline the case and do nothing at this time? The answer is Joe Biden will likely become President under questionable circumstances.
It wouldn’t be the first time (Joe Kennedy, come on down!), and the Union survived.
The issues raised by Texas’ complaint can still be addressed in the weeks and months ahead, separated from the possibility of reversing the outcome of the election from what it now appears to be. It does not matter how long or how consistently the Trump Campaign and the GOP have called out these four states for having botched their election processes and undermined some part of the country’s confidence in the outcome. The fact is the outcome has been announced by these four states. Interceding in a way that changes the outcome would be just that—changing the outcome.
Pennsylvania, Michigan, and Wisconsin all have divided government, but the GOP has recently had governors in two of those states. I can write that the GOP only needs to win back the governorship in those states . . . and the chorus I’ll draw in response will be “The Democrats will now fix the statewide election every year because they know they can get away with it.” There is no way to disprove that claim. But now that the GOP has some strongly held views on how the Democrats can corrupt the election process, they should be better prepared to call attention to irregularities as they happen.
There is no perfect solution to this problem, but if the Supreme Court was to hear and decide a dispute that is essentially the Republican Party suing the Democrat Party over who will be the next President then prepare yourself for a Supreme Court with 25 Justices. Every two years cases will be filed between states (they are all run by politicians, after all) and the Supreme Court will spend years hearing and deciding a never-ending series of challenges, maybe to the exclusion of just about everything else. A nine justice Court will have no chance to manage such a docket. It is the blue states and the Democrats who have waged law-fare to accomplish policy goals they have not been able to accomplish through elections.
Realistic? Maybe, maybe not. But just as Mark Elias has become known as the go-to election law expert for the Democrat Party, other lawyers will jump into that area of practice thinking they can get big-dollar cases from the state parties and candidates every election cycle to wage law-fare over the outcome of every close race. Once that river of lawsuits starts to flow it might be impossible to stop.
More problematic was the unique nature of the claims raised by Texas. This was a matter of first impression that would have appeared on the Supreme Court’s original jurisdiction docket. There is no established Supreme Court jurisprudence to guide the outcome. The Court would, quite literally, be making it up in whatever form a majority opinion might have taken because no state has ever brought claims like those brought by Texas. Conducting a courtroom trial in the Supreme Court in a matter of only days for either overturning or validating a Biden win was an invitation to a train-wreck outcome with opinions reflecting multiple points of view and likely a host of disputes over what the outcome should actually be. The three liberals would likely be of one mind, Justice Thomas and Alito together, maybe with Justice Barrett, and the remaining three Justices with their individual reasons for their votes.
It would be my very strong guess that the internal dynamic of the Court—a fractured view on what shape an outcome might take—counseled all of them that caution was the wiser course.
The issues raised in Texas’ complaint can still be addressed, but they will not be addressed in the context of a rushed process that might give President Trump a second term. Lower courts can identify parties with standing to assert the variety of claims made by Texas, and cases can proceed in the normal course. There is case law that allows state legislatures to sue on their own behalf, and the Third Circuit Court of Appeals has already suggested that claims under the Electors Clause can be brought by legislatures since they suffer the injury when a state executive usurps the authority given to them under the Constitution.
The Young/Parnell case challenging the constitutionality of mail-in voting in Pennsylvania remains pending on the merits in the Supreme Court; the only ruling thus far was to deny the Emergency Application for Injunctive Relief. A valid election dispute remains pending in Georgia state court.
The statute setting the day for the meeting of the Electoral College was passed in 1948. The date has never been changed. The reasons for setting that date roughly five weeks after the election and six weeks before the inauguration should be revisited. There is no reason I can think of why election challenges that might influence the nomination of Electors should have to be filed and determined in such a short amount of time. There were 47 million votes cast in 1948—there were more than 155 million votes cast last month.
The Court is not the institution that most hoped it would be. That is not the fault of the nine Justices that currently serve. Decisions of the Court are precedential, and each case has consequences beyond the determination of the claims between the parties before the Court. How those decisions influence events still to come is part of the determination that goes into the decision on whether to take a case or not.
Consider that the Court receives thousands of petitions to review lower court decisions every year. It takes a vote of only four Justices to accept a case. Yet, they accept only 85-100 cases per term. When four Justices agree, they still turn down the overwhelming majority of cases because they do not expect to find a fifth vote based on previously expressed views of the other five Justices.
But now there are six “conservative” Justices. Notwithstanding views about his decisions in a small handful of highly publicized cases, Chief Justice Roberts is a conservative vote. But with the addition of Justice Barrett, his vote is no longer needed to get that necessary fifth vote on the outcome of a case. Because only four votes are needed to take a case, and there are now two possibilities for finding a fifth conservative vote, there is a very high likelihood that the docket of the Supreme Court for the remainder of this term, and all of the next term, will be loaded with cases selected to deliver conservative outcomes that had never been assured of that fifth vote in the past.
Not blowing up that new reality in the Supreme Court by opening the floodgates to litigation between the states was a worthy judgment to make.
Shipwreckedcrew has 22 years as a federal prosecutor and six years in private practice. Follow on Twitter @shipwreckedcrew