What can the Supreme Court of the United States do to minimize bloodshed about a disputed election when half the population already regards each other as enemies?
Contrary to media fantasies it cannot just join the chant of “nothing to see here”. But it isn’t easy to see what could avoid inflaming the situation.
My guess is that full bench of SCOTUS will grant a stay or an injunction preventing completion of at least the Pennsylvania election.
This would be seen as vindicating Trump. So more of the justices would have to write detailed opinions than for a usual stay. That could result in some delay but is unlikely to change the impact.
Emergency appeals: Stay requests
Meanwhile I expect the Court will have quite a bit of other work to do before the December 14 Electoral College vote so the stay/injunction could effectively settle the issue for PA by preventing any PA votes in the Electoral College pending a final decision.
That might not stop Democrat Electors certified by Democrat Governors from forwarding their votes to be counted by the Electoral College before a session of both Houses on January 6. But it would stop Vice President Pence in charge of the session from counting them.
It would also stop the PA legislature from choosing Republican replacements. As the lower court that made the original order to delay completion agreed, the Republican plaintiffs request for that “relief” would be an “untenable” result of the (Republican) legislature having ignored the PA Constitutional provisions explicitly restricting absentee voting when it legislated unlimited postal voting. Such an outcome would also be “untenable” for other battleground States for more political reasons.
SCOTUS simply cancelling enough postal votes to reverse the outcome in any State would be even more untenable. Due process obviously precludes doing that since the postal votes were cast in reliance on the laws enforced at the time of the election.
The Purcell principle: A presumption against last-minute changes to election procedures
As the lower court noted, there are other options available to a court of equity. Delay to avoid an “untenable” outcome is an obvious example of a wise court impartially doing equity.
Due process and election administration
The least untenable options to either accept or nullify the election in each of the States where it was not conducted lawfully are to decide that the issue has become moot (as the State courts have tried to do to accept the results, and as SCOTUS could more successfully do to nullify them since it gets the last say as to what is or is not yet moot).
Avoiding an untenable result might be done most smoothly by preventing completion to enable weighty deliberations that will be concluded sometime after December 14 (perhaps including the initiation of some “forensic audits” as demanded by Trump).
Meanwhile, delaying PA completion until after December 14 would be a neat response to the Supreme Court of PA having refused to hear the case on the due process grounds that the Republican plaintiffs had delayed complaining about the unconstitutional legislation for a year until after losing an election (having previously ruled that they would have no standing to complain before the election!).
That would leave SCOTUS free to rule either way after considering the implications of other cases.
We are now almost at the “safe habour” deadline after which Congress is required to accept the credentials of any Elector votes certified by the Executive (Governor) of each State, unless both Houses separately object.
Serendipitously, after that deadline, December 8, it becomes unambiguously clear that ALL the 538 certified Electors have been “appointed” so the total number of votes required on December 15 to elect a President and Vice-President at the joint sitting on January 6 is 270.
If some of the certifications had been nullified before “safe harbour” it could be argued that Biden still had a majority of the votes of the appointed Electors.
If however sometime between “safe harbour” and the Electors meeting on December 15 (separately in each State) it becomes necessary for SCOTUS to decide whether a lawful election was in fact held in one or more States then it would also be necessary to issue emergency orders to preserve the status quo by ensuring that no purported votes from such purported Electors could be cast, transmitted or received until a decision about their status.
Serendipitously, that would also avoid the possibility of any State Legislature appointing Electors itself since it had chosen the method of election by the people and that had not yet been nullified by any Court holding that a lawful election had not been held and the appointments were therefore nullified. So there are no vacancies to be filled by the State Legislatures.
I think that could be the way a SCOTUS dominated by conservative strict textualists could deal with the problem that the plain text of the Constitution and legislation would otherwise clearly produce the “untenable” situation of SCOTUS appearing to do Trump’s bidding by allowing Republican legislatures to pick the Electors that were rejected by a majority of voters in their States.
I am not a lawyer, let alone an expert on US electoral and constitutional law, entwined with the history, politics and judicial personalities of the United States. But that’s my best guess. There are of course a vast array of other options available.
Only two more battleground States (other than Nevada) need to be prevented from voting on December 14 to throw the election to the House of Representatives voting by State delegations.
Starting with PA might be considered sufficient to discourage future rigging. But it could also just be a first step that gets people used to the idea that the media does not decide whether an election was conducted lawfully.
I cannot predict how far SCOTUS will go but Wisconsin and Michigan strike me as the most likely to accompany PA if SCOTUS needs to deprive Biden of a majority in the Electoral College with minimal bloodshed. Nevada only has 6 votes so there would still need to be two other States as well as PA. Arizona and Georgia had Republican administrations counting the votes. It is a lot more plausible that elections were rigged against Trump in Democrat run cities like Detroit MI and Milwaukee WI (as well as Philadelphia PA).
Here for example is what a 4-3 majority of the Supreme Court of Wisconsin just came up with:
“Once the door is opened to judicial invalidation of presidential election results, it will be awfully hard to close that door again. This is a dangerous path we are being asked to tread. The loss of public trust in our constitutional order resulting from the exercise of this kind of judicial power would be incalculable.”
Click to access 2020AP1930-OAfinal-12-4-20.pdf
Not only is there “nothing to see here” but it is “dangerous” that a candidate for President has disputed whether an election was conducted lawfully by petitioning a Court. That is pretty much EXACTLY what the media has been bleating continuously.
If SCOTUS did accept that Banana Republic judicial logic, the “loss of public trust” in the “constitutional order” would be a lot more “incalculable” than the rather mild dissent from the Chief Justice and two others of that court:
“It is critical that voting in Wisconsin elections not only be fair, but that the public also perceives voting as having been fairly conducted.
This is the third time that a case filed in this court raised allegations about purely legal questions that concern Wisconsin Elections Commission (WEC) conduct during the November 3, 2020, presidential election.4 This is the third time that a majority of this court has turned its back on pleas from the public to address a matter of statewide concern that requires a declaration of what the statutes require for absentee voting. I dissent and write separately because I have concluded that the court has not met its institutional responsibilities by repeatedly refusing to address legal issues presented in all three cases.”
Although mild, that “I dissent” was not the more customary “I respectfully dissent”.
If that refusal of institutional responsiility gets past the US Court of Appeal for the Seventh Circuit I would expect Barrett J, supervising that circuit for SCOTUS to issue an emergency order with an equanimity bordering on enthusiasm.
There is a slightly menacing undertone in the Supreme Court of Wisconsin majority adoption of Democrat warnings about a “dangerous path”. If Democrats were not so wimpish about the right to bear arms it might be hinting at “incalculable” civil unrest.
More plausibly “loss of public trust” in the “constitutional order” could result in the House of Representatives majority claiming to act on behalf of the majority of voters defending against a judicial blow against an election that everyone has been repeatedly told was entirely free and fair by every TV network.
Lots of interesting things could then happen in early January since the House of Representatives majority has powers over the credentials of its own members and could prevent any President or Vice-President being elected before the current term expires on January 20.
Serendipitously that could end up with President Pelosi since as Speaker of the House she is next in the line of succession of officers of the United States legislated in accordance with the Constitution (followed by Secretary of State Pompeo) as mentioned in Notes 48. SCOTUS could avoid any suspicion of being motivated by animus against the Democrats when they reject the inevitable Republican claims that Pompeo should be next in line because the Secretary of State is an officer of the United States Executive whereas the Speaker of the House is only an officer of the House.
With no mandate, no funds from the Senate, and no confirmed cabinet officers, President Pelosi would have to agree with both parties and the States on the necessity for constitutional changes to enable fresh elections as soon as possible after ending martial law to deal with the overwhelming of US hospitals by covid-19. I may return to that sheer fantasy speculation later.
I’ll also leave Michigan and the actual facts about excluding observers while rigging votes till later.
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SCOTUS docket 20A98 Kelly v Pennsylvania available here. Appeal for emergency relief was refiled December 3 to include denial from Supreme Court of PA.
Response to application (20A98) requested by Justice Alito, due Tuesday, December 8, by 9 a.m. (docket entry updated 12/6/20). Originally due following day. Brought forward to “safe harbour” date.
Coincidentally my post was also on December 6 at around 2230 AEST. Well before change of date SCOTUS time.
Lots of “friends of the Court” filing briefs. Only 1 by December 4, but 5 more on day after the date was moved forward.
Four articles speculating about the original date, its relation to the “safe harbour” date and the switched date:
Tomorrow should be interesting!
BTW Further reading suggests my references to Pelosi v Pompeo in Notes 49 and in Notes 56 above may be based on some misunderstanding.
Apparently if Electoral College does not have absolute majority for one candidate, then Senate chooses between top two of the EC candidates for VP and House (voting by State delegations) chooses between top three of the EC candidates for President.
Then if House fails to choose by 1pm on January 20 but the Senate did choose a VP the VP elect (presumably Pence) would become President.
Tomorrow I will have to review the link I quoted in Notees 49 that I thought explained both positions could become vacant resulting in Speaker of the House becoming President Pelosi.