'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.

Give It Back to the Indians

You'd think that the Supreme Court's recent decision in McGirt v. Oklahoma, which effectively cleaved the Sooner State in half, would be considered a very big deal, but you can hardly find any worthwhile analysis of it. Perhaps this is because the case has been lost in a sea of other major decisions issued around the same time -- including Bostock v. Clayton, which redefined the word "sex" for the purposes of the Civil Rights Act of 1964; June Medical v. Russo, which held that requiring abortion clinics to have admission agreements with local hospitals is unconstitutional; and DHS v. Regents of the University of California, which asserted that the Trump administration could not undo the Obama Administration's DACA order.

Another possibility is that Americans (unlike our cousins in Canada) are used to thinking of "Native issues" as having purely regional import, with little-to-no effect outside of a few dusty states in the south and west. But McGirt v. Oklahoma has the potential to be among the most significant decisions in years.

Loader Loading...
EAD Logo Taking too long?

Reload Reload document
| Open Open in new tab

For some background: Jimcy McGirt, a member of the Creek nation, or Muscogees, was tried and convicted in 1996 in Oklahoma for raping a four-year-old girl. While serving a life sentence, he appealed the decision, his legal team arguing that the state of Oklahoma had no right to try him for the crime, since the 1866 treaty which the Federal government signed with the Creek nation establishing a reservation in that territory was not abrogated when Oklahoma became a state in 1907.

In a 5-4 decision (which saw Trump appointee Neil Gorsuch join with the four liberal justices), the court agreed, declaring that, despite a century of behaving otherwise, much of eastern Oklahoma is legally "Indian country," and as such McGirt (and hundreds of other Indians currently imprisoned for crimes in the area) should have been tried in federal court, which has jurisdiction over Indian affairs.

Writing for the majority, justice Gorsuch conceded the potential for this decision to have wide ranging and unpredictable effects:

In reaching our conclusion about what the law demands of us today, we do not pretend to foretell the future and we proceed well aware of the potential for cost and conflict around jurisdictional boundaries, especially ones that have gone unappreciated for so long.

In his dissent, chief justice John Roberts added some more specificity to Gorsuch's point, while pointing to the mind-boggling scope of this decision, which, although ostensibly dealing with criminal law, will necessarily in an over-lawyered America bleed into other areas of governance.

Not only does the Court discover a Creek reservation that spans three million acres and includes most of the city of Tulsa, but the Court’s reasoning portends that there are four more such reservations in Oklahoma. The rediscovered reservations encompass the entire eastern half of the State—19 million acres that are home to 1.8 million people, only 10%–15% of whom are Indians. Across this vast area, the State’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out.

On top of that, the Court has profoundly destabilized the governance of eastern Oklahoma. The decision today creates significant uncertainty for the State's continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law.

While all of these points of uncertainty are worthy of further discussion, it is the last one -- environmental law -- to which we will turn our attention.

Oklahoma is our nation's fourth largest producer of oil and third largest producer of natural gas. But according to Dino Grandoni of the Washington Post, after this decision, roughly "a quarter of Oklahoma’s recent oil and gas wells and around 60 percent of its refinery capacity" is now within the confines of Indian territory. "Perhaps more importantly," Grandoni continues, "the network of pipelines pumping crude to and from Cushing, Okla. — a crucial oil terminal for the Keystone XL — spider-web across the redrawn reservation borders."

Andrew Jackson, call your office.

No industry likes uncertainty, and the potential for disruption to the oil and gas industry here is almost unprecedented. Relationships between regulators and producers, established over decades, might ultimately be worthless. The same could be said for the familiarity companies have with the minutiae of local government, and the responsibility that elected officials in Oklahoma have towards constituents effected by regulatory decisions. As Grandoni explains,

Instead of dealing with business-friendly regulators from the state of Oklahoma... producers may soon have to contend with both tribes and the federal government, which often manages land for Native Americans.

This is unfortunate, since, as we've seen, native groups are often susceptible to manipulation and outside interference, either because their governance structures aren't designed to deal with problems at this scale (a particularly acute problem in this case, as the governance of what Roberts called the "rediscovered reservations" hasn't had jurisdiction over this territory in over a century) or because the activist and media narrative diverge from the interests and preferences of the Indians themselves.

Moreover, in instances where the federal government manages territory on behalf of the native population, there is a world of difference between politicians and bureaucrats in Washington, D.C., overseeing the environmental regulations and politicians and bureaucrats in Oklahoma City doing the same. While berating bureaucrats is something of a national past time in America, especially on the right, many of Oklahoma's regulators will have grown up in the area, and will know something about the issues and the land, on top of being familiar with the producers. That isn't necessarily the case for bureaucrats at the EPA or the Bureau of Indian Affairs sitting at a desk 1,300 miles away.

And that doesn't even touch upon taxation, which could see the tribes in charge of eastern Oklahoma begin to collect taxes from producers on top of the state taxes which they already pay.

For those reasons and more, its no wonder that producers in Oklahoma are feeling apprehensive. According to Grandoni, "at least one company — Houston-based producer Alpha Energy Inc. — is warning investors it faces potential legal risks in its leasing of 3,400 acres in the state." And former Tulsa mayor Dewey Bartlett, who now runs an oil and gas company, said he "worries investors may be less interested in working with drillers in eastern Oklahoma — especially when similar opportunities exist in the western half of the state and across the border in Texas."

Now, it must be said that hope isn't necessarily lost for the oil and gas industry in Oklahoma. As Gorsuch pointed out in his majority opinion, "Oklahoma and its Tribes have proven they can work successfully together as partners," and that hundreds of agreements already exist between the state and its natives. There is, in fact, already a preliminary agreement between the Five Tribes with authority over this territory and the state of Oklahoma, signed within a few days of the decision.

But that agreement is general in nature, and it is likely that the interested parties will be hammering out the details of this new arrangement for years to come.

Hopefully there will still be an oil and gas industry -- including the jobs it provides to Oklahomans of all ethnicities -- on the other side.