Notes on Trump 57 – Safe Harbour

Today is December 8 in Washington. Celebrated by lots of media reports as marking the end of the wave of law suits challenging the 2020 Presidential election results. Experts say (again) that it’s all over now because the certified results are now final and conclusive.

In other news today:

Texas Attorney General Ken Paxton said he’s suing Georgia, Michigan, Pennsylvania and Wisconsin directly in the U.S. Supreme Court, accusing the battleground states of exploiting the coronavirus pandemic to illegally enact last-minute changes to mail-in voting rules.

Paxton, an outspoken supporter of President Donald Trump, claims the states “flooded their people with unlawful ballot applications and ballots” and ignored rules for how mail-in ballots were to be counted, according to a press release announcing the litigation. The allegations echo those made by Trump and his allies in dozens of lawsuits filed in the same swing states following President-elect Joe Biden’s election victory.
“These flaws cumulatively preclude knowing who legitimately won the 2020 election and threaten to cloud all future elections,” Texas said in a motion seeking high court approval to file the suit. “Taken together, these flaws affect an outcome determinative numbers of popular votes in a group of States that cast outcome-determinative numbers of electoral votes.”The suit comes on the “safe harbor” deadline for states to certify their slates of electors but before the Electoral College meets on Dec. 14. Paxton, who is seeking an order that would block electors from the four states from participating, requested an expedited briefing schedule requiring the defendant states to file briefs on Wednesday and oral arguments to be heard on Friday. If the court fails to act before the electors vote, “a grave cloud will hang over not only the presidency but also the republic,” he said.

https://www.bloomberg.com/news/articles/2020-12-08/texas-says-challenging-election-results-in-u-s-supreme-court

Here is the Texas press release with link to the actual filing:

https://www.texasattorneygeneral.gov/news/releases/ag-paxton-sues-battleground-states-unconstitutional-changes-2020-election-laws


That 154 page filing is not yet listed on the docket of the Supreme Court of the United States (SCOTUS).

Meanwhile in further news today, here is the response, just filed at SCOTUS, to petition disputing election in Pennsylvania election:

Click to access 20201208090425848_20A98%20Response%20in%20Opposition%20efile.pdf

Opens with:

Petitioners ask this Court to undertake one of the most dramatic, disruptive invocations of judicial power in the history of the Republic. No court has ever issued an order nullifying a governor’s certification of presidential election results. And for good reason: “Once the door is opened to judicial invalidation of presidential election results, it will be awfully hard to close that door again. . . . The loss of public trust in our constitutional order resulting from the exercise of this kind of judicial power would be incalculable.” Order, Wis. Voters All. v. Wis. Elections Comm’n, No. 2020AP1930-OA, at 3 (Wis. Dec. 4, 2020) (Hagedorn, J., concurring).”

That is EXACTLY the ludicrous media bleating I quoted from the 4-3 judgment in Wisconsin in Notes 56:

https://c21stleft.com/2020/12/07/notes-on-trump-56-serendipity-and-scotus/

But this time the menacing undertone is made explicit:

They make that request without any acknowledgment of the staggering upheaval, turmoil, and acrimony it would unleash. In issuing equitable relief, this Court rightly seeks to avoid inflaming social disorder. So to say that the public interest militates against Petitioners would be a grave understatement. Their suit is nothing less than an affront to constitutional democracy. It should meet a swift and decisive end.

…[many pages of obscurantist lawyerisms with no suitable media quotes]…

Finally, granting an injunction would sow chaos and confusion across the Nation while inflaming baseless concerns about electoral impropriety and ensnaring the Judiciary in partisan strife. This case reaches the Court against the backdrop of
unfounded claims—which have been repeatedly rejected by state and federal courts— that wrongly impugn the integrity of the democratic process and aim to cast doubt on the legitimacy of its outcome. Given that context, the Court should not plunge itself into a firestorm by issuing the first ever judicial order decertifying the results of a presidential election.

This banana republic intimidation is clearly designed as fuel for the media campaign rather than at convincing SCOTUS. There is nothing in the 52 pages that a media report could even attempt to convey other than the intimidation.

SCOTUS docket 20A98 Kelly v Pennsylvania is available here:

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20a98.html

On December 6 the due date for a response to the application (20A98) was brought forward by Justice Alito to Tuesday, December 8, by 9 a.m.

Originally due following day. Brought forward to “safe harbour” date so theoretically an order could be issued the same day

Coincidentally my Notes 56 about the implications of “safe harbour” day – “Serendipity and SCOTUS”, was also on December 6 at around 2230 AEST. Well before change of date Washington time. It explained why I expect an order issued after “safe harbour” to have more impact.

Here are four articles from others speculating about the original date, its relation to the “safe harbour” date and the switched date:
https://redstate.com/shipwreckedcrew/2020/12/07/is-justice-alitos-date-switch-intended-to-head-off-a-constitutional-confrontation-with-the-house-n290554

If the date was brought forward in the hope that the respondents might raise some issue regarding “safe harbour” so that SCOTUS could justify a pronouncement about it, the respondents did not do so.

Here is the media’s talking points on the date having been moved forward.

https://abcnews.go.com/Politics/experts-doubt-supreme-court-intervention-safe-harbor-deadline/story?id=74583089

“Experts” all agree that “safe harbour” deadline today sets the results in stone. Actually it only prevents Congress, not SCOTUS from overturning State returns. The experts are also convinced that SCOTUS won’t intervene at all, before or after today. There’s no sign of them even thinking about the issues I raised as to WHY the Republicans might prefer delays until after today and why they have not even filed cases for Wisconsin and Michigan at SCOTUS so far.

It doesn’t make sense for these experts to be saying what they are saying if they don’t actually believe their own delusions. If they were rational they would be at least preparing public opinion for the “possibility” that SCOTUS might “outrageously” intervene. But they are so wrapped up in their Trump Derangement Syndrome that they really are quite confident that a Supreme Court with 6 conservative and 3 liberal justices is about to do what they want.

I’m no “expert” so I’m not as certain as they are. But I would be surprised if these experts were not wrong – as usual.

While staying up waiting for this response I had another look at the links provided in Notes 49 concerning whether Pelosi could end up as President:

https://c21stleft.com/2020/10/05/notes-on-trump-49-and-the-winner-is-president-pelosi-or-president-pompeo/

As far as I can see the majority of the House withdrawing from the joint sitting on January 6 would still leave Pence presiding over a joint sitting together with Republican House members. Kicking Pence and the Senators out of the House chamber would not change the constitutional provision that the Electoral College vote count would be completed at that sitting and the result announced by Pence.

Then if no candidate had 270 votes the Senate would presumably elect Pence as Vice-President. Perhaps not, if some Republicans prefer Harris but that seems unlikely. Then the Vice-President elect would become President if the House had not picked a President when the current term expires on January 20.

Nevertheless the Democrats could claim that Pelosi had become President by insisting that:

  1. The majority of the House refusing to participate in the joint session they are required to participate in by law prevented it completing the count and therefore there is no basis for either the House to choose the President or the Senate to choose the Vice President, so both positions became vacant on January 20 and the Speaker of the House became acting President (until the deadlock is resolved).
  2. The Democrat Senators refusing to attend the Senate session they are required to attend by law prevented a two-thirds quorum and so prevented the Senate choosing the Vice-President by an absolute majority of votes.

SCOTUS could decide not to rule on such a political dispute.

But with both Pence and Pelosi purporting to take oaths of office as President by January 20 SCOTUS would end up having to decide.

The quicker the fat lady at SCOTUS sings the fewer people would get killed while shouting at each other.

At present more people are dying from covid-19 EVERY DAY than were killed on 911. So life has become cheap in the USA and SCOTUS could just let things drag on. I doubt it.

Since there is in fact no mood for civil war both sides would end up accepting the SCOTUS decision, as would the armed forces, including the Praetorian Guard.

Whatever SCOTUS decided would still be untenable as either House could deny funds to the Executive in a situation where they don’t accept the outcome.

Eventually I still think they would need to agree, together with the States, on a constitutional amendment for fresh elections.

Whatever they do, Trump will still be leading a large mass based right wing populist party.

4 thoughts on “Notes on Trump 57 – Safe Harbour

  1. Texas v Pennsylvania et al now on SCOTUS docket:
    https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/22o155.html

    Proposes oral argument December 11 (ie before December 14 meeting of Electoral College) or oral argument after December if interim injunction restraining electors of PA, WI, MI and GA prevents them voting.

    This is corresponds to what I explained about the electors still being appointed by “safe harbour” but unable to vote so the absolute majority remains unambiguously 270.

    Alito J has ordered:

    Response to the motion for leave to file a bill of complaint and to the motion for a preliminary injunction and temporary restraining order or, alternatively, for stay and administrative stay requested, due Thursday, December 10, by 3 pm.

    That is faster than proposed, but notably after “safe harbour” as suggested.

    Also on SCOTUS docket, for Kelly v PA:

    8 “friends of the court” briefs filed 4 each on December 7 and 8.

    One line order dismissing the application for an emergency order on December 8.

    So unambiguously all Electors are “appointed”, total number is 538 and a majority is 270.

    If PA, WI, and MI are restrained from voting then Electoral College is deadlocked and the House would vote for President by State delegations. GA not needed (and does not strike me as plausible). But any 3 of the four including PA would be enough and the 3 without PA would not be.

    Also suggestion that Congress could allow more time for the Court if it moved the Electoral College dates. Only the 20 January end of term date is set by the Constitution.

    In other news (likely to be featured and cluelessly celebrated by media) full court has issued a one line unsigned “miscellaneous” order denying Kelly application for emergency order that would have meant PA electors are not “appointed” by “safe harbour” if it had been accepted today.

    “(ORDER LIST: 592 U.S.)
    TUESDAY, DECEMBER 8, 2020
    ORDER IN PENDING CASE
    20A98 KELLY, MIKE, ET AL. V. PENNSYLVANIA, ET AL.
    The application for injunctive relief presented to Justice
    Alito and by him referred to the Court is denied.”

    Click to access 120820zr_bq7d.pdf

    https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20a98.html

    Like

    • Oh well at least I got to see what Republican snowflakes look like. A discussion about election shenanigans without mentioning voter suppression, gerrymandering, denial of statehood malapportionment in senate, the 2000 presidential election, electoral colleges but hey Trumpists are being bullied.
      I guess Stalin was right, when reactionaries are losing the more they will struggle or in this case squeal.

      Like

  2. SCOTUS has just dismissed Texas for lack of standing to dispute elections in other States.

    That was the weakest point. Texas claimed it had an interest because of dilution of Texas votes in Senate where Vice President chosen unlawfully has casting vote.

    I thought SCOTUS would take the case because otherwise they are stuck with multiple separate cases wading their way through the lower State and Federal courts.

    But combined with dismissal of Kelly v Pennsylvania this does indicate any eventual judgments will be well after Biden takes office, contrary to my expectation.

    Unusually, it seems the “experts” were right. Not unusually, I was wrong.

    Click to access 121120zr_p860.pdf

    No idea what happens next, as I wasn’t expecting this.

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