Week of December 16, 2020

Supreme Court Dodges Election Court Case

This week the United States dodged a court case that promised to change the election results and even lead to possible civil unrest or an outright civil war.  Even then, a member of the Texas legislature is proposing a bill that will allow a referendum that could lead to Texas seceding from the US.

The case submitted to the Supreme Court (SCOTUS) was brought by Texas and charged that four states; Pennsylvania, Michigan, Wisconsin, and Georgia had diluted its vote by changing its election procedures without the approval of its legislatures.  Texas asked the court to throw out the election results from those four states and force the legislatures (all controlled by Republicans) to choose their electors independent of the election results in those states.  If that had happened, Trump would have likely won the election.

At first, the court challenge had been underestimated by court watchers.  The Attorney General of Texas claimed that “failing to follow statutory requirements for signature validation and other processes for ballot security, the entire body of such ballots is now constitutionally suspect and may not be legitimately used to determine allocation of Defendant states’ presidential electors.”

It was a bombshell case.  In addition to accusing the four defendant states of not following the laws set up by their legislatures, which is a violation of the US Constitution, it asked the Supreme Court to not allow the electors votes from those states not to be counted by the US Congress in January.  Either the state legislatures must name a new slate of electors, which would likely vote for Trump, or not to send new electors to Washington, which would mean that Congress would have the final say – giving Trump the win anyway.

Unlike most legal cases that must work their way up to the Supreme Court, this went directly to SCOTUS.  The Constitution states that if there is a conflict between states, the case must be decided by the Supreme Court.  The rational was that since the US Constitution is a contract between the 50 states, any issue involving states cannot be decided by a lower court.

However, the state that brings the suit must prove that it was harmed.  That means in this case, Texas must prove that the actions of Pennsylvania, Wisconsin, Michigan, and Georgia directly harmed the voters of Texas.

In this case, Texas ruled that its citizens’ votes were diluted by the improperly counted votes of the other states – a weak rational since Texas voters had their own election for electors.

The Supreme Court added it to the docket on Tuesday and informed the four defendant states that they must respond to the charges by 3:00 PM on Thursday.

At first, the case garnered little attention.  However, as lawyers (especially attorney generals from the various states) read the Texas complaint, interest picked up quickly.

Although the case dealt with the 2020 election, there were some philosophical issues about interpreting the Constitution in the case.

When it comes to Constitutional law in the US, there are two schools of thought.  The first are the “Originalists,” who believe that the US Constitution must be read and interpreted as the writers of the Constitution did in the 1790s.  This was the traditional way it was interpreted until the 1950s, when the Warren Court established several landmark cases using a more liberal way of interpreting the Constitution.

The Warren Court followed the principle that the US Constitution was a “living document” that needed to be interpreted considering modern times.  It should not be read in light of what the writers of the Constitution meant, but how it should be interpreted in light of modern times and needs.

One example of the difference in interpreting the Constitution is how both sides interpret the Second Amendment that gives US citizens the right to keep and bear arms.  The originalists read the Second Amendment and its statement that the right to keep and bear arms should not be infringed and insist that that means laws limiting gun rights are unconstitutional.

The lawyers who prefer the “living constitution” interpretation insist that given the fact that the US has a standing army (precluding the need for a militia) and is experiencing high levels of violence in its cities, the Second Amendment must be interpreted differently, meaning gun control laws are constitutional.

In many ways, the case brought up by Texas was questioning how the Constitution would interpret Article I where the state legislatures are the final authority in establishing election procedure.  The Texas case noted that election officials and courts frequently changed election procedures without going through the legislature.

Texas noted, “Our country stands at an important crossroads.  Either the Constitution matters and must be followed, even when some officials consider it inconvenient or out of date or it is simply a piece of parchment on display at the National Archives.  We ask the Court to choose the former.”

The case not only attracted attention, but it also caused may groups to become involved.  Over 40 states filed “Friend of the Court” briefs – in some cases, not reflecting how they voted, but how they want the case to interpret the Constitution.  Republican Arizona, which voted for Biden came in on the side of Texas, while Ohio, who voted for Trump, sided with the defendants.  Montana submitted two responses – one from its Republican Attorney General and one from its Democratic governor.

In addition to a filing by President Trump, other groups included over 120 Republican congressmen, Members of the Pennsylvania legislature (backing the Texas petition), the Christian Family Coalition, and two American territories that cannot even vote for president.

Both sides, it seemed, were preparing for history making oral arguments on the future of the US.

However, it didn’t’ come to that.  On Friday evening, the Court ruled with little comment that Texas had not proved that it had been harmed by the actions of the four states.  Associate Justice Alito (one of the conservative justices) wrote that Texas had a lack of standing to bring the suit.  He wrote Texas “has not demonstrated a judicially cognizable interest in the manner in which another State conducts its election.”  As a result, “All pending motions are dismissed as moot.”

Thus, ends the case and probably the best chance Trump had for changing the election results (although there are many other cases working their way through the court system, that could possibly end up at the SCOTUS).

However, this does not end the issue.  The issues raised by Texas were not decided.  The decision only reflected the standing of Texas to bring them.  The issues could end up coming before the Supreme Court in the future, when the passion of the election will not have an impact.

However, the passions behind the 2020 election remain and will not soon be cooled.  Pro-Trump voters demonstrated in Washington DC a day after the SCOTUS ruling.

At the same time, the New York Times, speaking to the political divide, tried to explain it by speaking of an “Expert Class” of “journalism and academia” that lives in the cities, versus the “people left behind who “have no contact with the expert class.”

Calling Trump supporters stupid is not a way to patch up the differences.

Meanwhile, the control of the US Senate remains in question as two elections in Georgia will decide control of that chamber.

Clearly, the US is deeply divided politically.  This week, the highly popular radio talk show host Rush Limbaugh noted that the US may be headed for a breakup as states may secede.  Democratic Congressman Pascrell of New Jersey asked House speaker Pelosi to refuse to seat the Republican congressmen who supported the Texas court filing for supporting “insurrection or rebellion.”

Of course, when it comes to talk of seceding, Texas always takes a lead as a poll showed that most Texans either favor secession or are undecided.

Texas GOP chairman and former Black US Congressman Allen West said on Friday that the rejection of the court case by SCOTUS was a major problem.  He tweeted, “Perhaps law-abiding states should bond together and form a Union of states that will abide by the Constitution.”

He reiterated his opinion on secession on Saturday.

Texas lawmaker Kyle Biedermann will be filing a bill to allow for a referendum on Texas becoming its own country or remaining in the US.  He notes the Texas State Constitution says, “The faith of the people of Texas stands pledged to the preservation of a republican form of government…they have at all times the inalienable right to alter, reform or abolish the government in such a manner as they may think expedient.”

Ironically, many who are condemning any talk of secession now were contemplating it a few months ago if Trump was reelected.

Even without court cases or secession of states, the US has several hurdles it must clear to go back to a normal condition.

BLM and Antifa are still protesting in the Pacific Northwest.

There is also the growing controversy of Biden’s son, Hunter Biden, taking bribes and being investigated by the FBI.  It would be hard for Biden to govern if his son is being prosecuted by his own Department of Justice.

Republicans will be watching this investigation for any sign of wrongdoing.

And it is not hard to imagine this controversy leading to the resignation of Biden and Harris becoming the president.

It seems that the SCOTUS decision is not the end of the political controversies of 2021, but the beginning.