I was right about the Supreme Court, though the scenario played out differently than I had expected it to. As it turns out, there wasn’t a single justice with the guts to admit that Texas attorney general Ken Paxton had it right:
[T]he 2020 election suffered from significant and unconstitutional irregularities in the Defendant States [Georgia, Michigan, Pennsylvania, and Wisconsin]:
Non-legislative actors’ purported amendments to States’ duly enacted election laws, in violation of the Electors Clause’s vesting State legislatures with plenary authority regarding the appointment of presidential electors.
Intrastate differences in the treatment of voters, with more favorable allotted to voters–whether lawful or unlawful–in areas administered by local government under Democrat control and with populations with higher ratios of Democrat voters than other areas of Defendant States.
The appearance of voting irregularities in the Defendant States that would be consistent with the unconstitutional relaxation of ballot-integrity protections in those States’ election laws.All these flaws–even the violations of state election law–violate one or more of the federal requirements for elections (i.e., equal protection, due process, and the Electors Clause) and thus arise under federal law. See Bush v Gore, 531 U.S. 98, 113 (2000)(“significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question”) (Rehnquist, C.J., concurring). Plaintiff State respectfully submits that the foregoing types of electoral irregularities exceed the hanging-chad saga of the 2000 election in their degree of departure from both state and federal law.Moreover, these flaws cumulatively preclude knowing who legitimately won the 2020 election and threaten to cloud all future elections.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.
In sum, the citizens of States that were won by Trump were denied equal protection of the laws: Their votes were nullified because Georgia, Michigan, Pennsylvania, and Wisconsin flouted their own election laws. (To say nothing of massive instances of fraud, of which there is ample evidence, Democrats and media enablers to the contrary notwithstanding.)
William Rehnquist, who presided over Bush v. Gore twenty years ago, must be spinning in his grave.
This may have been a (futile) attempt by Roberts et al. to forestall court-packing, which surely will happen as soon as the Democrats garner a working majority in the Senate. Which is one reason among many to hope that the January 5 runoff elections in Georgia result in victories by the two Republican candidates.
An esteemed reader and correspondent sent me a link to a piece in which Alan Dershowitz is quoted at length. Here’s some of it:
Dershowitz agreed with Justices Samuel Alito and Clarence Thomas, who indicated that Texas did have standing, saying they ”get the better of the argument,” but that the court just didn’t want to deal with what may be perceived as political.
”This Supreme Court decision sends a message,” Dershowitz said. ”The majority included the three justices appointed by President [Donald] Trump, and they all said, ‘We’re not going to hear the Texas case. We’re not going to get involved in this election.’
”I think this sends a message. It’s not a legal message, but it’s a practical message: the Supreme Court is out of this game.”
Elsewhere, Mollie Hemingway weighs in:
[H]ow can the state of Texas not have a judicially cognizable interest in her sister states living up to the compact they entered when they entered the Union?
Texas attempted in its briefs to crystalize the harm by stressing its interest in who serves as vice president, given the vice president’s tie-breaking status in the Senate and senators’ role as the representatives of the states. But a simpler and stronger argument came in a brief submitted by would-be amicus curiae [in] Citizen’s United:
When one state allows the Manner in which Presidential Electors be chosen to be determined by anyone other than the state legislature, that state acts in breach of the presuppositions on which the Union is based. Each state is not isolated from the rest—rather, all states are interdependent. Our nation’s operational principle is E pluribus unum. Each state has a duty to other states to abide by this and other reciprocal obligations built into Constitution. While defendant states may view this suit as an infringement of its sovereignty, it is not, as the defendant states surrendered their sovereignty when they agreed to abide by Article II, § 1. Each state depends on other states to adhere to minimum constitutional standards in areas where it ceded its sovereignty to the union—and if those standards are not met, then the responsibility to enforce those standards falls to this Court.
On Friday, the Supreme Court voted not to enforce those standards.
Maybe there is a good reason. Maybe Rehnquist’s view was wrong. Maybe the court found the alleged violations not “significant” enough to reach the level of a constitutional violation. (How “significant” would a violation have to be?) Maybe the court viewed a violation of the compact on which our country was founded as beyond its purview.
There might be a satisfactory answer, but Americans have yet to hear it. And that was wrong, both for the court and the country.
As the old saying goes, “we wuz robbed” by a cabal of crooked umpires.