I—like many others—was somewhat dismissive of the latest US Supreme Court application, launched initially by the state of Texas against the states of Pennsylvania, Michigan, Wisconsin, and Georgia, alleging that the presidential elections in those states were invalid. However, upon reading the plaintiff’s case carefully, and double checking with the constitution, I am forced to wonder if Trump has not indeed this time “grabbed them all by the pu**y.”
* Updaete 12/12/2020: as predicted below, the Supreme Court used the "standing" issue to refuse to hear the case. There are now no more legal options for Trump.
Essentially, the case before the court can be summed up as follows:
Article II of the US Constitution says that
only the state legislatures can draw up the rules by which presidential
elections for electors are held in the states.
The four states named as respondents (Pennsylvania, Michigan, Wisconsin, and Georgia) all ran their elections by rules created outside of the state legislatures, that is, rules created by judges, unelected civil servants, and orders from some individual politicians.
These rules all had to do with the rules
governing mail-in ballots, which in Pennsylvania’s case, jumped from around
230,000 in 2016, to nearly 2.5 million in 2020. These arbitrary rules included
the mailing out of unsolicited ballot forms to voters, a lack of enforcement of
the signature check rules, amongst many other issued.
To use the mail-in ballots as an example: traditionally,
when a voter applies for a mail in ballot, they must sign an application form.
The returned ballot is then cross checked
against the original application form signature to try and ensure that it came
from the person who asked for the ballot.
Obviously, when mail in ballots are sent
out unsolicited, this double check process cannot be enforced or used.
Here is the important part: the decision to
use unsolicited mail-in ballots was not the result of the legislatures of any
of the states, but rather the made-up rules by individuals within the states’
civil service.
California, by contrast, ordered their
election from within decisions taken in the state legislature. That is why they
are not named as respondents.
So the bottom line is that Pennsylvania,
Michigan, Wisconsin, and Georgia, all ran their elections in contravention of
the US constitution.
The suit does not have to prove fraud: all
it does is show that the states failed to adhere to the regulations as laid
down in the constitution.
And on the face of it, this would appear to
be a correct argument.
According to the constitution, there are
two ways in which this dispute about the selection of electors can be solved. The
Court can
(i) order that the state legislatures
appoint the electors directly (on the basis that the state legislature was also
elected by the people) or
(ii)
refer the election of the president directly to Congress. In such a case, each
state is given ONE vote based on state delegations.
The Republican Party controls the state
legislatures of the four states named as respondents, and that party also makes
up a majority of the state delegations in the House (if not a majority of
individual delegates, but that doesn’t matter as each state is given a vote,
not each individual congressman/woman).
In either of these two remedies, Trump will
take the Electors from those four states, and pass the 270 Elector mark with ease,
adding 62 electors to his total and reducing Biden’s by the same amount.
So what will the US Supreme Court do? That is the million-dollar question.
If the Court follows through on the Constitution,
they will have no choice but to agree with the Texan suit.
Furthermore, on the fact of it, it would appear
that the only way this suit could be struck down is on a technicality on the
standing of the parties involved, revolving around the claim that the States do
not have the right to take each other to Court on such matters.
Whatever they decide, it will be an
interesting few weeks ahead.
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