Time to accept 2020 outcome, but election rules must be fixed

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Americans are used to uncertainty on Election Day and potentially a few days afterwards, but this was the first time in living memory that there has been any real drama about the Electoral College voting (which will happen today under the applicable federal statute) to officially determine the presidential winner.

In 2000, the Supreme Court decision in Bush v. Gore settled matters before this point in the process was reached. And while there was an anti-Trump effort in 2016 to promote the idea that electors could use their independent judgment in deciding which presidential candidates to vote for, this “faithless elector” theory never gained any real traction (and has since been rejected by the US Supreme Court on grounds that presidential electors may be required to vote for the candidates they were associated with during the election).

The state-certified presidential results stand at Biden 306, Trump 232, right, and it’s all over except for jubilation on one side and lamentation on the other? According to the mainstream media et al., that’s an eminently appropriate outcome. The Electoral College prepares to hand Trump the loss he refuses to accept, Joey Garrison [USA Today], yahoo.com,

After all the failed lawsuits, the recounts, the falsehoods and conspiracy theories, President Donald Trump will finally meet his electoral fate Monday. Across all statehouses amid a global pandemic, 538 electors are set to convene to cast their votes for either President-elect Joe Biden or Trump, reflecting the popular votes in their states.

There was a last-minute challenge from the state of Texas (which picked up support from 18 other states, President Trump’s campaign, and over 100 Republican House members of Congress). So what was that all about, and would the challenge be slapped down by the Supreme Court or taken seriously?

A. Texas lawsuit – Last week’s entry covered the status of challenges to the apparent outcome of the presidential election in some detail, but the next day we had to post an update. More election news and other matters, scroll to the end, 12/7/20.

Here’s an angle we hadn’t anticipated, namely a suit between states is to be filed with the US Supreme Court. No predictions, but we’ll be following like everyone else. Texas sues states Biden won in Supreme Court, seeking to delay Electoral College vote, Harper Neidig, the hill (msn.com), 12/8/20.

The suit (led by TX Attorney-General Ken Paxton) was filed against four Defendant States – PA, GA, MI, and WI – which had presumably been singled out because (a) Biden’s margins in these states were slim, (b) there had been substantial electoral irregularities, and (c) moving any three of the states into the Trump column would give him the 270+ votes required for election.

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The Constitution gives the US Supreme Court original jurisdiction over legal disputes between states. Thus, this lawsuit offered immediate access to the SCt for a multi-state legal challenge that could – if successful – reverse the outcome of the election. After several weeks of floundering in lower courts (both state and federal) based on attacking issues in half a dozen individual states, such a “one case” strategy had obvious appeal for the president and his allies.

The legal theory was that the expanded use of mail-in voting, coupled with weak controls over this mode of voting, had given a clear-cut advantage to the Biden campaign. Also, the mail-in voting requirements had been purposely relaxed in Defendant States by watering down state statutory ballot-integrity protections such as signature and witness requirements for casting ballots and poll-watcher requirements for processing/counting them.

Non-legislative actors had typically made the aforesaid changes by negotiating settlements in “friendly suits” or issuing administrative guidance to state or voting district personnel about how various matters should be handled. This contravened the Constitution (Article II, Section 1), which vests plenary power in state legislatures for determining how presidential electors to the Electoral College are to be selected, thereby arguably contaminating presidential voting outcomes in the Defendant States.

The alleged violations of state procedures are combined with references to other circumstances that support doubt about the election results. For example:

Expert analysis using a commonly accepted statistical test further raises serious questions as to the integrity of this election. The probability of former Vice President Biden winning the popular vote in the four Defendant States—Georgia, Michigan, Pennsylvania, and Wisconsin—independently given President Trump’s early lead in those States as of 3 a.m. on November 4, 2020, is less than one in a quadrillion, or 1 in 1,000,000,000,000,000.

And see these intriguing notes re Dominion Voting Systems:

On October 1, 2020, in Pennsylvania a laptop and several USB drives, used to program Pennsylvania’s Dominion voting machines, were mysteriously stolen from a warehouse in Philadelphia.

In Michigan, which also employed the same Dominion voting system, on November 4, 2020, Michigan election officials have admitted that a purported “glitch” caused 6,000 votes for President Trump to be wrongly switched to Democrat Candidate Biden.

A flash drive containing tens of thousands of votes was left unattended in the Milwaukee tabulations center in the early morning hours of Nov. 4, 2020, without anyone aware it was not in a proper chain of custody.

In sum, presidential election results in the Defendant States were constitutionally tainted and sloppily handled as well. What’s more, the discrepancies were considerably larger than the Biden margin so appropriate adjustments could clearly be outcome determinative.

The SCt was not asked to determine the outcomes in PA, GA, MI & WI, but simply to “remand the appointment of electors” to these states and order that their respective legislatures “certify their electors in a manner consistent with the Constitution.”

It presumably wouldn’t be feasible to rerun any of the state elections since the next president will need to be sworn in on Jan. 20. However, a state legislature could make statistical adjustments to the state vote totals to address problems, e.g., (1) disallow the estimated number of mail-in ballots returned after Election Day, which was the applicable deadline under the PA statute (before the PA SCt decreed otherwise), (2) assume a rejection rate of 6.4% for mail-in ballots in GA – same as 2016 – versus the 0.37% rejection rate that applied in 2020 after the signature verification requirements were effectively eliminated, (3) etc.

Or a state legislature could throw out the presidential vote totals (the impact of some defects, such as interference with Republican poll watchers, aren’t readily quantifiable), and appoint a slate of electors based on its own judgment (which approach would be in harmony with the Constitution, and indeed was used by a number of states in the early years of the Republic).

The Texas lawsuit was styled as a motion for leave to file a bill of complaint, but all the other paperwork was included - bill of complaint, brief, motion for expedited consideration (a handy 15-page summary of the entire package), motion for preliminary injunction and temporary restraining order. Texas v. PA, GA, MI & WI,

The SCt docketed the Texas lawsuit and directed the four Defendant States to respond by Dec. 10 PM. No surprise, the responses slammed the suit and urged that it be summarily rejected. Battleground states issue blistering rebukes to Texas' lawsuit to invalidate millions of votes, Ariane de Vogue & Paul LeBlanc, cnn.com,
12/10/20. (Links to the four state responses may be found at the end of the CNN report.)

Each of the four battleground states targeted by a Texas lawsuit seeking to overturn President Donald Trump's election defeat issued blistering briefs at the Supreme Court on Thursday, with Pennsylvania officials going so far as to call the effort a "seditious abuse of the judicial process."

The SCt justices had a conference on Dec. 11 AM, at which disposition of the Texas lawsuit was no doubt one of the principal items of discussion. A subsequent post in the SCOTUS blog suggested that the filing wasn’t being viewed favorably. Editorial: Don’t just deny Texas’ original action. Decimate it, Tom Goldstein,

•The easy thing for the Supreme Court to do is simply deny Texas permission to file the complaint (and deny the motions to intervene as moot) and be done with it. No fuss, no muss. But the court should do more. It is perfectly ordinary and appropriate for the justices to write an opinion explaining the various reasons why they are rejecting Texas’ request.

•President Donald Trump, other supportive Republicans, and aligned commentators have firmly convinced many tens of millions of people that the 2020 presidential election was stolen. If that view continues to take hold, it threatens not only our national politics for the next four years but the public’s basic faith in elections of all types that are the foundations of our society.

•A simple five-page per curiam opinion genuinely could end up in the pantheon of all-time most significant rulings in American history.

Around 6:30 PM, there was breaking news. The Texas suit had been rejected with a rather brief statement about the matter that attributed the result to Texas’ lack of standing to complain about voting procedures in other states.

An unofficial, but considerably more pointed post followed in the SCOTUS blog. Among other things, this note stated that “virtually all legal experts had given the lawsuit little chance of succeeding from the moment it was filed on Monday.” The posture of Texas in this proceeding was described as “extraordinarily unusual” for “an election-law dispute.” President Trump was mocked for attempting to use the lawsuit to show the election had been “stolen,” and two of the entities filing in support of the lawsuit were said to be the non-existent states of “New California” and “New Nevada.” Justices throw out Texas lawsuit that sought to block election outcome, Amy Howe, scotusblog.com,

So order had now been restored, the Electoral College would do the expected, and life would go happily on – or would it? Notice the closing statement:

With the Electoral College vote slated to take place in just three days, Friday’s order as a practical matter puts a stop to efforts to contest the results of the election through litigation. It’s less clear, however, that the order can end the partisan divide in the country.

B. Reactions – It would be hard to argue that the SCt did the wrong thing. The Texas lawsuit raised a plethora of factual issues, that would have required months to review and resolve using the usual legal methods (discovery, testimony including cross-examination, expert witnesses, etc.) The nation was basically divided down the middle as to who had “really” won the election, so taking the Texas lawsuit would have ignited a political firestorm. And pushing the decision point beyond January 6, when the new Congress is supposed to accept the results of the Electoral College voting on December 14, would have created a constitutional crisis.

Basing the decision on lack of standing seems somewhat questionable, however, and indeed was questioned by Justices Alito & Thomas. Having being given original (effectively exclusive) jurisdiction over cases between states, it might seem that the justices should feel obliged to entertain whatever claims the states might wish to litigate on the merits. As one legal expert aptly observed, the real point of the ruling was a practical one. [Retired Harvard Law Professor Alan] Dershowitz to Newsmax TV: Supreme Court just didn’t want to get involved: , newsmax.com,

''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.''

Legal professionals, the media, and Democrats generally lauded the SCt decision. Faced with an unprecedented claim, filed at the proverbial last minute, based on claims that had been previously rejected in numerous lower courts (both state and federal), the justices had understandably concluded that the Texas lawsuit must be rejected and acted accordingly – thereby upholding the Constitution rather than playing politics. How dozens of judges across the political spectrum rejected Trump's efforts to overturn the election, Rosalind Helderman & Elise Vibeck (WaPo), chron.com,

The president has yet to concede defeat, and the same goes for his legal team. See this statement by the team leader (now bouncing back from COVID) and associate Jenna Ellis. Rudy Giuliani after Supreme Court rejects Texas bid to overturn election: “We’re not finished,” Anthony Leonardi & Daniel Chaitin, Washington Examiner,

Case not considered by SCt on the merits – can pursue four or five separate cases by filing in district court[s] – convince state legislatures to “reclaim their delegates” – re upcoming Electoral College vote, Trump team will continue the fight “into January.”

Notwithstanding the SCt ruling, a Trump supporter demonstration took place in DC on Dec. 12 with a reported 10-15K participants. Although not directly involved, the president expressed his appreciation for this activity. Counter-protestors also turned out, and there were outbreaks of violence in the evening hours. Tempers flare as Trump supporters rally in Washington, Ashraf Khalif, apnews.com,

Trump tweeted his apparent surprise Saturday morning at the rallies, publicly known for weeks: “Wow! Thousands of people forming in Washington (D.C.) for Stop the Steal. Didn’t know about this, but I’ll be seeing them! #MAGA”

Trump left the White House around midday for the trip to the Army-Navy football game at the U.S. Military Academy in West Point, New York. As the Marine One helicopter passed over a rally on the National Mall, cheers went up.

Realistically, this kind of rearguard action won’t stop Joe Biden from becoming the nation’s next president. Whether President Trump chooses to formally concede or not, we think it’s time for him and his supporters to focus on other issues. Nailing down the deal on defense spending (the president’s veto threats should be dropped) - enacting FY 2021 appropriation bills (government shutdown deadline is now Dec. 18) - achieving a responsible outcome in the haggling over another round of coronavirus economic relief.

That’s not to say the complaints about widespread electoral irregularities in the 2020 should be abandoned; these complaints have not been thoroughly reviewed by either the SCt or the lower courts that have been involved in the litigation thus far. So when Amy Howe commented in the SCOTUS blog (supra) that the SCt’s order wouldn’t clearly “end the partisan divide in the country,” she was effectively acknowledging the possibility that someone (undesignated) might need to do something (unspecified) about a situation that the SCt didn’t want to muck with.

It’s hardly inconsequential that millions of Americans consider the presidential election outcome to be tainted, and this situation shouldn’t be blamed on President Trump just because he had the temerity to challenge the election results. As we see it, there is more than enough blame to go around, and the people and groups responsible for biasing the election procedures before-hand and trying to silence any and all criticism afterward deserve a major share. What’s more, the notable disinterest of US courts doesn’t mark them as champions of the Constitution versus, say, defenders of the Establishment.

More lawsuits to challenge the election outcome aren’t needed, enough is enough. So far as we know, there is no basis for appointing a special counsel to pursue criminal charges against anyone. But we would recommend a national commission, along the lines of the Carter-Baker commission (which was formed to consider the contested course of the 2000 election), to fully and impartially review the conduct of the 2020 elections and recommend corrective action. Ironically, many of the C-B recommendations were directly contrary to the progressive relaxation of electoral safeguards in recent years (which peaked in 2020 using the COVID pandemic as an excuse). 7 ways the 2005 Carter-Baker report could have averted problems with 2020 election, Fred Lucas, dailysignal.com,

Had Congress and state governments adopted many of the panel’s recommendations, the 2020 postelection mess between President Donald Trump and former Vice President Joe Biden might have been avoided, said Carter-Baker Commission member Kay C. James, now the president of The Heritage Foundation.

Others may suggest that reform is needed all right, but should take the form of abolishing the Electoral College so presidents will be elected based on the national popular vote and there will be less need to worry about close elections, etc. We disagree; see our analysis after the 2016 elections. Electoral College serves valid purposes,

Further suggestions re an Electoral Reform Commission will be offered in due course, probably after January 20.

**********FEEDBACK & UPDATES**********

#Sent 12/14/20 e-mail to President Trump (via White House website), summarizing our conclusions and citing this entry for further discussion. Receipt was acknowledged.

#Sent 12/14/20 e-mail to Fred Lucas of Heritage, expressing appreciation for his electoral challenge reporting in the Daily Signal and suggesting that he might find this entry of interest.

#I don’t understand how there could be a “lack of standing.” The US is a union of “States,” so how could a state not have standing to something as critical as who is going to preside over the federal government? – SAFE member (DE)
Your point is well taken. See the Allen Dershowitz explanation cited in the entry.

#SAFE director: (1) Any voter should have standing due to diluted voting power. That is the hurt, I would think.
Per Allen Dershowitz, the real point is that SCt didn’t want to get involved in the case.

(2) But, what could the SCt do? Force a revote? Remedy at penultimate hour is unclear to me.
Possibilities discussed in the entry include statistical adjustments for some errors, disallowance of improper ballots, or remand to the state to select electors in a manner consistent with Art. II, Section 1. Outraged reactions can readily be imagined.

(3) No clear solution to ballot fraud. Left will not tolerate a national ID such as SS number recorded nationally to limit one vote per citizen.
Left's position is crystal clear, but they must not be allowed to dictate terms – or conservatives will be finished.

#SAFE director: I know Dinesh D'Souza is not an attorney, but I think he captures the disappointment the public feels with the SCt.'s decision. The public voted out the elites in 2016 - they don't want what elites are peddling - they voted for Trump in 2020. If the populace is deprived of a peaceful means of electing a leader, they could resort to un-peaceful means. For sure now, the public (Trump supporters and then some) do not trust their institutions, their leaders, the courts. The SCt. should have taken the case, even if they ruled against Trump.
The judicial handling of this issue may have been arrogant and insensitive, but the question is how President Trump and his supporters should react. The blog entry says there is no point continuing a hopeless legal fight versus focusing on what will happen in the future.

#Thanks for your writeup, Merry Christmas! - SAFE member (DE).

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