'A Republic, If You Can Keep It'

Friday’s announcement that the Supreme Court would not hear the case brought by Texas and other states and parties challenging the election results in Georgia, Michigan, Wisconsin and  Pennsylvania  is a sad blow for those counting on the Court to resolve the issue of  a stolen election of a manifestly incapable candidate. The court ruled that the parties lacked standing to prosecute the case under Article III of the Constitution -- that is to say, they lacked a judicially cognizable interest in the manner in which other states conducted their elections. 

Justices Alito and Thomas indicated in the short order that they would have heard the case  because they believe that when one state sues another, a matter in which the Supreme Court has original jurisdiction, the court lacks discretion to refuse to hear it. But both men opined they “should not grant other relief” and expressed “no view on any other issue.” They had earlier dissented in a case on the very point of the Court’s obligation to hear cases brought  by one state against another, the cases in which it has original jurisdiction and no other court may hear such matters.

Or not, as the case may be.

The complainants argued that the states  whose results they wanted overturned did violate the Constitutional provision  that state legislatures set the time, place and manner of elections -- not judges or other state officials. Even aside from fraud -- as to which numerous affidavits were attached to the complaint -- they charged this conduct was unconstitutional.

Pennsylvania 

  • The Secretary of State unilaterally abrogated signature verification requirements for mail-in ballots.
  • Pennsylvania supreme court changed existing deadline for receiving mail-in ballots from 8 p.m. on the day of election to three days after the election and adopted a presumption that non-postmarked ballots be considered as valid.
  • Election officials in Philadelphia and Allegheny counties did not follow state law permitting poll-watchers to be present for the opening, counting, and recording of mail-in ballots.
  • The Secretary of State directed election officials to remove ballots before 7 a.m. on the day of election in order to “cure” defective mail-in ballots.  This was done only in Democrat majority counties.
  • Election officials did not segregate ballots received after 8 p.m. on election day breaking the promise made to the U.S. Supreme Court thus making it impossible to identify or remove those ballots.

Georgia

  • The Secretary of State unilaterally abrogated signature verification requirements for mail-in ballots.
  • The Secretary of State authorized opening and processing mail-in ballots up to three weeks before election day when the law prohibits that until after the polls open on election day.
  • The Secretary of State materially weakened the security requirements for ballot rejection based on signature verification or other missing information.

First the Declaration, then the Constitution: what could go wrong?

Michigan

  • The Secretary of State unilaterally abrogated signature verification requirements for mail-in ballots.
  • The Secretary of State sent out unsolicited ballots to all 7.7 million registered voters contrary to election law which requires a voter to request a mail-in ballot through a process that includes a signature to be matched with the voter registration.
  • The Secretary of State also allowed absentee ballots to be requested online without signature verification.
  • Local election officials in Wayne County -- containing 322,925 more ballots for Biden than for Trump -- opened and processed mail-in ballots without poll-watchers present.
  • Local election officials in Wayne County also ignored the strict election law requirements of placing a written statement or stamp on each ballot envelope indicating that the voter signature was in fact checked and verified with the signature on file with the state.

Wisconsin

  • The Wisconsin Elections Commission (WEC) positioned hundreds of unmanned illegal drop boxes to collect absentee ballots.  (The use of any drop box, manned or unmanned, is directly prohibited by Wisconsin statute.  Any alternate mail-in ballot site “shall be staffed by the municipal clerk or the executive director of the board of election commissioners…” and “Ballots cast in contravention of the procedures specified in those provisions may not be included in the certified result of any election.”)
  • The WEC encouraged voters to unlawfully declare themselves “indefinitely confined” in order to avoid security measures like signature verification and photo ID requirements.  Nearly 216,000 voters said they were indefinitely confined in the 2020 election, nearly four times as many as in 2016.
  • Strict laws requiring mail-in voters to certify by signature including the signature of an adult witness were ignored or circumvented by election officials.

If you believe, as I and millions of voters do, that the election was stolen from President Trump, it is disappointing that there was no opportunity to have these legal issues resolved. On the other hand, I believed if the Court had decided to take it, it would not have decided who won these states. Instead, it would have remanded the complainants to the legislatures of these states, which have the responsibility to fashion a remedy.

They can do this by decertifying the results and either refusing to offer up a new slate or by picking a new slate on their own and submitting it to Congress at the appropriate time. In fact there was no small amount of evidence of corruption in other states as well -- Arizona comes to mind, and the same option remains for them as well. Prominent conservatives are in fact urging them to do just that.

There are other proceedings concerning individual states wending their way up to the Supreme Court, but I don’t see how any would significantly change the outcome. By my count even if the complainants in the case brought by Texas had been successful , the results would not have been dispositive. Count the electoral votes to see what I mean. Michigan has 16, Wisconsin 10, Pennsylvania 20, Georgia 16. (A total of 62 votes.) If you subtract those from the 306 electoral votes presumptively registered now for Biden and do not award them to President Trump -- which was always the most  optimistic outcome -- Biden would still have 234 votes to Trump’s 232--a majority of the remaining 466 electoral votes.

"Well done is better than well said."

I only see two ways to reverse the outcome. First, the legislatures in these four states and at least one other could refuse to advance their state's electoral votes to Congress, either leaving the state with none or picking an alternate slate. Second, Congress can refuse to certify those states where fraud marked the balloting. Under the 12th Amendment, the House votes January 6 on certification by state delegation (and the Republican delegations have more votes) . All it takes is an objection by one House member and one Senator to force a vote on such objections.

As Benjamin Franklin famously said, we have “a, republic if you can keep it.” Whether we can depends on what is a predictably weak link, the legislatures of the very states where fraud marked the presidential election this year.