It is more than two months since the “insurrection”. Many things still up in the air but some have landed so an update is overdue.
I expected SCOTUS to hear some cases on unlawful changes to election rules. I was wrong about that. SCOTUS just refused to hear the last of the Trump campaign disputes (Wisconsin).
That has lots of implications which have not yet landed, so I won’t start analysis now.
Trump’s recent speech confirmed his complete domination of the GOP with much the same orientation as before plus a focus on making it harder to vote in battleground States where GOP still controls the legislature but lost to Biden. Effects of that campaign and Federal legislation still have not landed.
As I expected anti-Trump opposition within GOP has basically fizzled. A large majority of GOP Senators and a majority of GOP in House of Representatives oppose Trump but they won’t fight and Trump will. So the GOP will become a right wing populist party led by Trumpists with a large, militant and angry mass base and substantial representation in Congress.
The calibre of Trump’s opponents in the GOP is well illustrated by the fact that they want to use Trump’s brand to raise funds for defending GOP incumbents against Trumpist challengers:
That is a significant change to the US political system the results of which will become more clear after the 2022 primaries.
Another significant change is the full commitment of Democrats to batshit craziness. It is now compulsory to believe that Trump incited an insurrection to overturn the last elections. Not one single Democrat in the House or Senate voted against that. The results of that, and of the efforts at media censorship, are also still up in the air.
In particular there is not yet any indication that the question of who decided not to protect the Capitol from an openly planned break in by militia groups will become an issue.
There is still a race between vaccination and the new strains of covid-19 both in Europe and North America. Rest of the world still not likely to get vaccine quickly enough. Likely outcome still looks like at least several years of a new endemic disease. Less likelihood of hospital systems actually collapsing in developed countries but they are still trying to open up far faster than is justified by the levels of vaccination. Effect of that on US politics still up in the air along with general impact of new administration.
Biden got more votes than Trump largely because of Trump’s catstrophically bad leadership on covid-19.
Trump was very good at provoking enough insanity from deranged liberals that he looked like getting a second term simply based on being hated by deranged people rather than having actually delivered anything.
The Democrats were so hopeless that despite running against a Trump who could be blamed for many of the 400,000 deaths they nearly lost in the Electoral College and there are serious doubts as to whether their victory was lawful.
The Biden administration has just released a 200 page strategy for covid-19:
I have only skimmed the first half. I could not bear to even skim the second half which had chapters on “equity” and “US leadership” plus the full text of Executive Orders to implement the strategy.
As far as I can see the strategy document adequately highlights the fact that the current wave is spreading uncontrolled across the USA and will get worse, with hospital systems already starting to be overwhelmed. That is better than Trump and a necessary preliminary to having a strategy.
But I did not notice any plausible strategy. As with Trump the focus is largely on the vaccine. Various measures are proposed to accelerate delivery but I did not notice any that could achieve even a parabolic acceleration, let alone catch up with exponential infection. For example great stress is placed on delivering 6 doses from each vial originally intended to ensure 5 doses with allowance for wastage. That is merely an insignificant blip, not even a plan for constant linear, let alone parabolic acceleration.
The target of 100 million doses in 100 days is comparable to the current level of bungled delivery (900,000 per day). Proportional to population it is substantially slower than what the UK is currently delivering. That is probably realistic and reflects how disfunctional the US health system is. If achieved it could substantially reduce mortality both by protecting many of the most vulnerable and by keeping most of the health and aged care workforce functioning so that staff sick, dead or in quarantine are not the main bottleneck on health and aged care.
But I did not see any calculation suggesting that vaccination of less than 1 in 6 Americans could avoid continued exponential increase resulting from the more infectious strains becoming dominant with the current levels of shutdown. Continuing at that rate would take more than a year to reach herd immunity if it was not reached by infection first.
Instead of plans to tighten lockdowns what I did see was a goal to open up kindergartens and schools within the same 100 days and focus on “testing” to open up rather than immediate mobilization for more severe lockdowns.
In other countries that opened schools too early so as to get parents back to work too early, the pretense that children do not transmit infection has been dropped and schools are being closed as an emergency measure to help keep hospitals open.
The USA is still headed in the same direction as Trump, the opposite to what is needed. So is the UK and so is most of Europe.
A worse disaster can be expected in most of the developing world. Hopefully they may get enough vaccines to protect their relatively small healthcare workforce. But they won’t receive vaccines before Europe and North America so herd immunity will take much more than 1 year with no realistic prospect of overtaking the exponential growth of new strains.
On December 2 I wrote:
This is not just a half baked, but rather a quarter baked article on the current situation with covid-19.
My guess is that Australia is about half way through the state of emergency that began in mid-March.
Current indications are that a vaccine will start to be available here from about March or April, with full availability and likely herd immunity by the end of next year.
That should mean Australia goes to the back of the queue for vaccination. There is currently no urgent need here and major disasters elsewhere, so it should take much longer than the end of next year to vaccinate Australia.
But its far more likely the poorer countries that are likely to eventually get hit very hard will come last and Australia will be in the middle. I would be surprised if the production plants in Europe and North America divert supplies from the disaster unfolding around them until they have that under control. So the initial vaccinations here could also be later than March and April.
Anyway there is plenty of time before next March to analyse the recent news re vaccines.
A lot more information will be available in a few weeks so I am not attempting to analyse this further now. The disasters in Europe and North America are still unfolding and far worse is to come in the rest of the world, but it will be a lot easier to analyse in a few weeks than it is right now.
I am just dashing this off quarter baked because I expect to be paying more attention to US politics over the next few weeks.
A few weeks later there is no doubt a lot more information available. But I am still focussed on US politics and have not caught up on covid-19.
We are still in the silly season and a lot of things are up in the air and have not yet landed – both for US politics and covid-19 (of my three main topics last year, only Brexit has “landed”, with the expected whimper not bang).
As far as I am aware covid-19 has developed pretty much as I expected. But the new virus strains could make things considerably worse than I was expecting. Anyway here’s another “quarter baked” update.
The UK hospital system has now been in crisis for several weeks. The explosion in case numbers was inevitable due to catastrophic government failure (worse than in USA) but it has been confirmed that new virus strains are indeed significantly more infectious and are pretty certain to spread worldwide.
That is not an unexpected development. Natural selection favours survival of those viral strains that are more infectious.
Unexpectedly there is now preliminary data from the UK indicating that the strains expected to become dominant worldwide are also more deadly. Natural selection does not usually favour survival of viral strains that kill their hosts more quickly since dead people spread infection less than when alive. It is suggested that the mechanism which makes some new strains more infectious is stronger attachment between the virus spikes and host cells, which results in both a higher viral load that is more infectious and a more intense immune system response that is the main cause of death.
It is tempting to speculate that greater mortality could instead simply be due to collapse of the UK hospital system with government announcements naturally preferring to blame nature. But there is no doubt the preliminary data is based on serious statistical analysis by authoritative sources, not from Public Relations spokespeople.
Here is some commentary from outside experts followed by link to the technical paper that was just released:
I am not competent to evaluate any of this, but it seems likely to be important.
Both the US and UK are engaged in a race to vaccinate as many people as possible as fast as possible to get their hospital systems back under control.
That seems to me an inherently implausible strategy. We know that the new strains still grow exponentially under the levels of lockdown imposed so far. A plausible strategy would move immediately to a severe enough level of lockdown to actually stop transmission despite the greater infectiousness. That would require only really essential workers allowed out of their homes to work on delivering food, electricity and other essential supplies and services direct to households (as in Wuhan).
We also know that the rate of manufacture and delivery of vaccines cannot grow exponentially as vaccinations do not produce more vaccinations in the way that infections produce more infections. Extreme acceleration of vaccination can only be parabolic, like the acceleration due to gravity, not exponential, like a “viral” epidemic or a nuclear “chain reaction”.
Of course it is possible that even a constant linear delivery of vaccinations could reach herd immunity before the virus infects everybody. But it is very much a short term race with unfavourable odds.
The emergency already justified “emergency use” authorizations without the length of studies usually required and accelerated parallel development of manufacturing facilities. There are health as well as financial risks in both. These are now compouded by lengthening the period between initial and follow up doses so as to maximize short term numbers and permitting use of untested combinations of different vaccines for first and second doses when supplies of the vaccines initially available (mRNA) cannot keep up and manufacturing plants for others (eg AstraZenaca) do come on stream.
One risk already visible is that those for whom vaccination is most urgent – frontline health and quarantine workers – are also the most aware of the risks and about a quarter of healthcare workers in the UK are already hesitant about getting vaccinated.
That will presumably be met by media campaigns and lots of reassuring pronouncements by authorities that could induce actual panic given the perceived trustworthiness of authorities and the media.
Another risk strikes me that I have not read any technical papers about. Partially vaccinated people could be an ideal breeding ground for new strains that are harder to get rid of. My understanding is that people given a course of antibiotics are required to complete the full course to avoid the survival of those more resistant bugs that were not completely killed off by the initial dose.
I gather the effects of triggering the immune reaction are sufficiently unpleasant (nausea, fever, headaches etc in a small but not negligible proportion) that the dominant reason for two doses is to reduce that impact. Indeed recent evidence from Norway suggests that enough frail elderly people are getting killed by the effect of the vaccine to make it possible that the more frail residents of aged care facilities are better off just relying on the vaccination of staff, visitors and other residents rather than getting vaccinated themselves.
If the severity of those effects is the main reason for two doses, it seems possible not enough attention would be paid to the danger of breeding new strains by delaying a second dose in an emergency situation where there really is desperation to outrace collapse of the hospital system. I would of course not be capable of becoming competent to make that judgment.
So far the level of blithering incompetence in Australia has been less fatal than elsewhere. It remains to be seen whether Australian governments will act quickly enough to prevent the new strains escaping from quarantine. I have no way to judge whether they will or won’t. So far they have not. But things are already desperate enough elsewhere that it is reasonable to expect that they will.
I am not commenting on the dispute about whether AstraZeneva should be paused in Australia because it is unlikely to deliver herd immunity. As far as I know the simple fact is that mRNA plants in Europe and North America are not going to deliver supplies needed in a race to save their hospital systems to countries that are worse off, let alone countries that are better off, no matter how selfishly the Australian government demands it and how high it bids up the price. My impression is that even Paul Kelly makes more sense than the competent virologists who started and then backed away from that dispute. That unfavourable impression of competent virologists is not an endorsement of Paul Kelly. But it does strengthen my lack of confidence that people who should know what they are talking about actually do.
This official explanation from twitter speaks for itself and needs no comment.
On January 8, 2021, President Donald J. Trump tweeted:
“The 75,000,000 great American Patriots who voted for me, AMERICA FIRST, and MAKE AMERICA GREAT AGAIN, will have a GIANT VOICE long into the future. They will not be disrespected or treated unfairly in any way, shape or form!!!”
Shortly thereafter, the President tweeted:
“To all of those who have asked, I will not be going to the Inauguration on January 20th.”
Due to the ongoing tensions in the United States, and an uptick in the global conversation in regards to the people who violently stormed the Capitol on January 6, 2021, these two Tweets must be read in the context of broader events in the country and the ways in which the President’s statements can be mobilized by different audiences, including to incite violence, as well as in the context of the pattern of behavior from this account in recent weeks. After assessing the language in these Tweets against our Glorification of Violence policy, we have determined that these Tweets are in violation of the Glorification of Violence Policy and the user @realDonaldTrump should be immediately permanently suspended from the service.
We assessed the two Tweets referenced above under our Glorification of Violence policy, which aims to prevent the glorification of violence that could inspire others to replicate violent acts and determined that they were highly likely to encourage and inspire people to replicate the criminal acts that took place at the U.S. Capitol on January 6, 2021.
This determination is based on a number of factors, including:
President Trump’s statement that he will not be attending the Inauguration is being received by a number of his supporters as further confirmation that the election was not legitimate and is seen as him disavowing his previous claim made via two Tweets (1, 2) by his Deputy Chief of Staff, Dan Scavino, that there would be an “orderly transition” on January 20th.
The second Tweet may also serve as encouragement to those potentially considering violent acts that the Inauguration would be a “safe” target, as he will not be attending.
The use of the words “American Patriots” to describe some of his supporters is also being interpreted as support for those committing violent acts at the US Capitol.
The mention of his supporters having a “GIANT VOICE long into the future” and that “They will not be disrespected or treated unfairly in any way, shape or form!!!” is being interpreted as further indication that President Trump does not plan to facilitate an “orderly transition” and instead that he plans to continue to support, empower, and shield those who believe he won the election.
Plans for future armed protests have already begun proliferating on and off-Twitter, including a proposed secondary attack on the US Capitol and state capitol buildings on January 17, 2021.
As such, our determination is that the two Tweets above are likely to inspire others to replicate the violent acts that took place on January 6, 2021, and that there are multiple indicators that they are being received and understood as encouragement to do so.
If that had been written as a parody it would have been unconvincing.
But its real.
Of course Trump announced that his own platform will be rolled out shortly.
But Google took a more serious step. It won’t distribute apps for other platforms unless they meet its requirements for enforcing “better moderation”. (In Australia they would have said “safety”).
Since they have a near monopoly with semi-locked phones it could actually take a few days of email forwarding for most people who care to learn how to download and install apps from other sources such as those listed here:
The resilience of the networks behind those sites was massively hardened during the explosion of scientific collaboration bypassing commercial publishers resulting from covid-19.
Now of course Google, NSA et al are thoroughly aware of and indeed contributors to all of that.
It would certainly be possible to shut everything down in an emergency. What’s missing is the ability to just make peoople disappear. That is far simpler, quicker and more effective. No actual fascist regime tries to impose such breathtaking levels of censorship as that being announced without being able to rely on just locking people up.
Meanwhile the main effect is just to drive people into narrower circles that can be more easily monitored – eg if they end up imagining that the Tor encrypted networks funded by the US Navy are some sort of way to avoid US government surveillance.
But the side effect is far more important.
Raising the general level of paranoia is certainly “likely to inspire others to replicate the violent acts that took place on January 6, 2021”.
Suppressing that is likely to inspire some actual “domestic terrorism”.
Is that the aim?
Possibly for some. But my guess is the corporate liberals have just lost the plot.
Some Republicans really are stupid enough to imagine they could survive the primaries in two years by prohibiting Trump from running for public office.
If just 17 GOP Senators join the Democrats in impeaching Trump in order to impose that penalty, we would be in quite an extraordinary situation. Not worth analysing unless it actually happens. I have no way to guess whether there are that many who are that desperate and stupid.
But it is certainly plausible that there will be enough Democrats to start the impeachment process. They already did “the Russia thing” and they already impeached Trump once. What harm would they see in helping to intensify the fight that Trump has already unleashed in the opposing party?
So everything possible is being done to increase the relevance, support and enthusiasm of a large mass based right wing party with both a substantial Congressional representation and a militant extra-Parliamentary wing.
Moreover the complete desertion of basic democratic principles by Trump’s opponents forces others to unite with Trumpists on the simple issue of whether we want to be told what we are allowed to think and say by corproate liberals (who Trump calls the “radical socialist, Marxist left”).
I honestly cannot guess what the people at Twitter who signed themselves “Your official source for what’s happening” think will now happen.
My guess is it will be a lot easier to get along with the Trumpists in a united front than with that lot.
With 98% of the votes counted, the outcome in Georgia is no longer “unknowable”.
Democrats ahead in both Senate races and most uncounted votes are from Atlanta so it is reasonable to assume that Democrats will have control of the Senate.
That largely insulates the Biden administration from threats of government shutdown and blocking of administrative and judicial appointments. That gives them less excuse for their inability to do anything useful.
It also gives Trump less leverage within Congress as he would have less scope to swing the 60 vote majority currently required for legislation (although it also increases the likelihood of that rule being abolished).
However Trump’s main relevance is still as leader of an oppositional mass based party that will be confronting its opponents in the Republican primaries (and many State legislatures) over the next two years as well as confronting a corrupt administration that cannot blame its opponents for its inability to do anything useful.
If SCOTUS did eventually declare both President and Vice President positions vacant there would be a smooth transfer within the same Democrat administration – either to Pelosi or, in the unlikely event of that being declared unconstitutional, to Biden’s Secretary of State, Blinken who can now be rapidly confirmed. But the Senate would then become deadlocked at 50-50 since Harris would no longer be Presiding officer with a casting vote.
Either replacement Democrat President might then have great difficulty getting their nominee for Vice President or any other position confirmed by the Senate and even getting funds to avoid government shutdowns.
Serendipitously that potential outcome might make it easier for SCOTUS to bite the bullet. As well as doing its duty to maintain the basics of bourgeois democracy by nullifying unlawful election results, it would avoid having overturned the popular vote and facilitated better conditions for a political solution to the absurdities left over from an eighteenth century constitution.
In “Notes on Trump 56 – Serendipity” I wrote:
“With no mandate, and no funds from the Senate, President Pelosi would have to agree with both parties and the States on the necessity for constitutional changes to enable fresh elections. I may return to that sheer fantasy speculation later.”
That fantasy would be a lot less dangerous than a right wing populist party pitted against a corrupt regime.
Tomorrow’s posturing in the joint session of both Houses will only be the start of a serious mobilization about electoral fraud mixed together with some seriously crazy conspiracy theories.
At present it still looks like we are stuck with the more dangerous situation.
Either way things would be a lot better if there was a revolutionary democratic left force openly hostile to both sides.
The media’s campaign to convince Republicans the election was rigged against them has been spectacularly successful.
Overall trust in elections has plummeted among Republicans: Prior to the election, 66 percent of GOP voters said they had at least some trust in the U.S. election system. In the latest poll, that dropped to 33 percent. Democratic trust, meanwhile, jumped from 63 percent to 83 percent.
Simply by asserting that allegaions are “baseless” and “without evidence” in almost every paragraph, the media has been able to halve the number of Republicans who have any trust in the U.S. election system. Increasing the proportion of Democrats who trust it by a third is not much compensation.
Now President elect Joe Biden is joining in the campaign:
Joe Biden : (09:12) Even more stunning, 17 Republican Attorneys General, and 126 Republican members of the Congress, actually, they actually signed onto a lawsuit filed by the state of Texas. That lawsuit asked the United States Supreme Court to reject the certified vote counts in Georgia, Michigan, Pennsylvania, and Wisconsin. This legal maneuver was an effort by elected officials and one group of states to try to get the Supreme Court to wipe out the votes of more than 20 million Americans in other states. And to hand the presidency to a candidate who lost the Electoral College, lost the popular vote, and lost each and every one of the states whose votes they were trying to reverse.
Joe Biden : (10:04) It’s a position so extreme, we’ve never seen it before. And position that refused to respect the will of the people, refused to respect the rule of law, and refused to honor our Constitution. Thankfully, a unanimous Supreme Court immediately and completely rejected this effort. The Court sent a clear signal to President Trump that they would be no part of an unprecedented assault on our democracy.
That sends exactly the same two clear messages that the media has been repeating:
The USA will now have a government that treats going to its courts to dispute election results as an attack by enemies of the people – exactly like every country that has rigged elections.
Thankfully, the courts can be relied on to defend the government from such outrageous attacks by enemies of the people.
Can Biden succeed in halving again the number of Republicans who still have some trust in US elections so that only 1 in 6 Republicans remain trusting? Will he feel successful if he increases the numbers of Democrats with some trust by another one third?
He can certainly try!
It would be hard for anyone who does not support his government to fail to grasp this clear message that they will have to fight.
What remains to be seen is how many who oppose Trump will join in.
Trump makes it harder for people to oppose this attack on the basic principles of democracy. Biden is doing his very best to make it easier. Anyone who cops this shit from the government will cop anything.
I thought it would be extremely difficult for the Democrats to top the stupidity of having spent years claiming that the President of the USA was a Kremlin stooge.
I was wrong. Its easy and they are likely to become even more unhinged as the inevitable results of their efforts bear fruit.
Presumably they really do believe the conservative majority on SCOTUS is on their side.
So how are they going to cope if that turns out to be wrong? What if the same courts that refused to issue emergency orders without testing the evidence end up holding trials to consider the evidence? Obviously the media will continue to simply denounce that as an “unprecedented assault on our democracy” and insisting there is no evidence. Will repeating that again be helpful?
And what do they expect, and what does SCOTUS expect would happen if courts did simply refuse to consider election disputes as demanded by the President elect.
Are they going to find it easier to govern a country where more than half the voters don’t trust the election results, or the courts?
Not a problem. In the same speech where Biden denounced a majority of Republican voters for their “unprecedented assault on democracy” he also said:
Joe Biden : (12:32) You know, in this battle for the soul of America, democracy prevailed. We the people voted, faith in our institutions held, the integrity of our elections remains intact. And now it’s time to turn the page as we’ve done throughout our history, to unite, to heal. That soothing message is bound to work out well. Can’t you just feel the uniting, the healing…
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 [emergency injunction in] 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.
No idea what happens next, as I wasn’t expecting this.
Thinking about it, my assumptions now are as follows.
Certainly nothing dramatic happens before December 14 so Biden and Harris become President and Vice President elect.
I just read the Texas reply filings and it seems they were serious about wanting the State Legislatures to be able to appoint replacement electors and actually have Trump declared winner on December.
That was never going to happen and I took it as purely an ambit claim with the intention of throwing it to the House instead by just restraining the votes so that total required would remain 270 and Biden/Harris would have less than that. But perhaps State Legislatures really was the plan, which was doomed.
They also seriously tried to defend a statistical analysis rather mildly described as “nonsense” by defendants.
It was actually “completely idiotic” rather than merely “nonsense”, as clearly explained here:
I also now think it is also highly unlikely that anything much will happen by January 6 or by inauguration day on January 20.
Another factor is that there were still only 126 (of 196) Republican Representatives signed on as friends of the court in a second attempt a day after the first 100. That suggests a serious likelihood that throwing it to the House would still result in Biden winning in the House (with Vice President Pence winning in the Senate). Representatives in “purple” swing States are often “moderates” to avoid alienating other voters. There could easily be enough Republicans in enough State delegations who could either vote against Trump or simply abstain so that their State delegation votes for the candidate that had the larger popular vote. Only 1 or 2 State delegations would need to swing or abstain.
The issues will end up going to trial at some point but it seems unlikely that SCOTUS intends to expedite anything at all. One case that blocked Federal trials on the substance for Pennsylvania was already listed has a response due December 28 to proceed normally:
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.
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:
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:
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:
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.
“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:
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:
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).
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.
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 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.”
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.
Conducted November 29-30, 2020 By Rasmussen Reports
[Question] “Who is America’s biggest enemy as 2020 draws to a close – Russia, China, Iran, North Korea, Trump voters or Biden voters?”
NOTE: Margin of Sampling Error, +/- 3 percentage points with a 95% level of confidence
Voters See Each Other as America’s Enemy
Tuesday, December 01, 2020
U.S. voters now regard each other as a bigger enemy than Russia or North Korea and just as dangerous as China.
The latest Rasmussen Reports national telephone and online survey finds that 24% of Likely U.S. Voters think Biden voters are America’s biggest enemy as 2020 draws to a close. The same number (24%) see China as enemy number one.
Nearly as many (22%) regard Trump voters as the biggest enemy, while 10% view Russia and seven percent (7%) North Korea as the largest threat to the United States. Eleven percent (11%) are more wary of something else. …
A deeper dive finds that 37% of Republicans feel Biden voters are the biggest enemy, just edging the 34% who feel that way about China. Thirty-five percent (35%) of Democrats think Trump voters are the biggest threat, far and above the danger posed by all the others.
Voters not affiliated with either major party rate China, Biden voters and Trump voters all equal as threats.
Wisconsin Supreme Court refused to hear election dispute by 4-3. Referred to lower court.
Georgia recount confirmed Biden by similar tiny margin.
Kelly v Pennsylvania explained in Notes 54 and comment is still not on SCOTUS docket. Presumably today’s conference of Full Court will decide how to handle it. Pennsyvania Supreme Court won’t and has issued order refusing stay of its lifting of injunction imposed by lower court preventing completion of Pennsylvania election to decide what to do about likely unconstitutionality of postal voting.
Trump made important 45′ video on election rigging – mainly re postal voting. Speech and media reaction likely to significantly increase hostilities. No mention of Kelly v Pennsylvania. But if, as I expect, SCOTUS does prevent completion of Pennsylvania election pending hearing it will be widely seen as support for Trump’s claims of rigged election, assisted by media reaction to it.
Michigan legislature oversight committee is holding video hearings of “non-existant” evidence from Giuliani’s witnesses to fraud. Some flaky, some convincing. 5 hours of video. https://www.pscp.tv/w/1mnxeabMYLnxX
It looks to me highly likely that the numbers of voters who consider each other to be the biggest enemy of their country will continue to increase.
Conditions still ideal for populist demagogue building right wing mass based party.
Worth taking the time to understand what is happening.
Pennsylvania constitution restricted absentee votes to limited categories. Legislation established unlimited postal votes. Lower Court ordered emergency delay to consider. Higher State Court allowed certification to proceed. SCOTUS now asked to nullify. Not on SCOTUS docket yet but here’s documentation so far:
If Justice Alito issues the emergency injunction the Full Court would need to deal with the issue immediately to decide whether Pennsylvania electors participate in the Electoral College vote.
Lots of sound and fury for the next week at least.
Current situation is fairly clear. Election result was determined by votes not permitted by State Constitution.
Pennsylvania appeal court says that even if so, it was raised too late to justify nullifying the election.
This will presumably be considered together with allegations that credentialled observers were prevented from actually checking whether postal votes were being counted fraudulently.
I would be surprised if there are Pennsylvania electors participating in the Electoral College vote.
I would be astonished if there is not a lot of simultaneous screaming that this is an outrage and of reassurance that it won’t affect the final result.
In other news:
US Attorney General has announced that well before the election a special investigator with similar powers to Mueller has been appointed to investigate the whole Russiagate exploding heads phenomenon with notification of this delayed until after the election. I expect more outrage, with more liberal exploding heads, further consolidating a mass right wing party in the USA.
I think that is very real. I haven’t seen any plausible indications the Georgia result could be overturned and certainly no risk of civil war. But things are already hot enough to expect some deaths on both sides.
Vaccine approvals being rushed through very shortly after December 8 deadline for election disputes. Cold storage shipment facilities already being organised by airlines and military for 20 million or so by the end of the month and year. I would be surprised if Trump fails to do a grand tour inserting his branding into the event.