The Homa Files

Disclaimer: I’m neither a lawyer nor a constitutional scholar… just a curious guy trying to understand an interesting issue.

OK, there’s a constitutional question in Pennsylvania, whistleblower affidavits of episodic malfeasance in multiple states and a widespread (albeit partisan) sense that fraudulent ballots were submitted without adequate verification and counted.

Trump’s lawyers are petitioning the SCOTUS to review the charges and order remedies.

So, the question is: Will the SCOTUS intervene in the election?

Let’s drill down on that question…

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Will the SCOTUS take the cases?

Importantly, the SCOTUS isn’t obligated to take a case.

At the court’s sole discretion, it can refuse to hear a case … without even providing a rationale for its refusal.  They can just say “go away”.

An emerging popular view is that the SCOTUS will go to great lengths to stay out of the election fray because:

1. Chief Justice Roberts is inclined to punt since (a)  he’s already tagged with preserving ObamaCare with some questionable legal reasoning and doesn’t need another such mark to his legacy, and more meaningfully (b) he takes a long view and wants to keep the SCOTUS clear of politics.
2. Given the bruhaha over ACB’s late term appointment to the SCOTUS, any SCOTUS action seeming to favor Trump will be railed against by the left and provide a rallying cry for Dems to pack the courts
3. At this time, it’s not crystal clear that any of the GOP allegations would — if true and remedied — would change the outcome of the election.

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Would the cases matter?

My view: “mattering” has at least 2 dimensions:

1. Would a SCOTUS ruling change the outcome of the election?, and
2. Would a SCOTUS decision improve the integrity of elections going forward?

Most pundits are are arguing that — unless AZ and GA flip to Trump — nothing the court rules in, say PA, will change the presidential election outcome.

That’s true, but (a) there is a probability greater than zero that GA and AZ will, in fact, flip.  And, time is of the essence, so the court can’t wait for recounts in those states, and (b) there are also down ballot elections in play.  For example, a small vote shift in GA could elect Sen. Perdue without a run-off.

So, I don’t think that a claim of “won’t change the outcome” is sufficient cause for the SCOTUS to punt the questions.

Regarding election integrity …

In an interview, I heard Prof. John Turley draw a sharp distinction between episodic and systematic malfeasance … implying that only the latter would merit SCOTUS consideration.

For example, a lone wolf mailman caught harvesting a handful of ballots is episodic — not necessarily an indicator of systemic malfeasance.

But, there are a couple of charges that probably rise to that level, most notably:

1. PA’s disregard of the state legislature’s laws governing the counting of late-arriving mail-in ballots.
2. Multiple states skirting either the letter or spirit of laws requiring the close observation of the counting process.  Should observers be able to see what they’re supposed to be observing? For example, can the signature on a ballot envelope be validated from 25 feet away?
3. Multiple states’ ballot verification processes being inadequate or disregarded. For example, are postmarks and signatures actually being checked?

My view: These are material issues that will be substantially supported by evidence that merit SCOTUS review.

For example, it’s indisputable that PA election officials changed the late-arriving ballot rules, apparently without constitutional privilege.

I don’t see how the SCOTUS can let that issue slide.

If it does, partisan hacks (on both sides) will have precedent for changing election rules whenever and however they choose.

Similarly, the partisan observation charges seem pretty clear cut.

PA(Philly) will argue that it operated within the letter of the law by allowing partisan observers into the convention center where votes were being counted.

Trumpsters will argue that PA (Philly) clearly violated the spirit of the law by keeping observers too far away from the action to perform meaningful oversight.

The SCOTUS can and should provide a clear definition of what meaningful partisan observation means.

The thorniest issue is whether or not ballots are sufficiently scrutinized for legal authenticity.

Surely, there were fraudulent ballots submitted during the election.  Who knows whether there were enough to change any outcomes?

What level of verification is required to protect the integrity of elections?

Is that a Federal issue or a states’ determination?

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My bet: SCOTUS will punt charges of ballot fraud … but will clarify rules on partisan observation of voting and counting processes … and will take on the constitutional question of who can make and change election rules.

Of course, the latter raises questions of remedy if the court decides that PA election officials’ rule changes were unconstitutional.

For my view on that, see the prior post:

• Alito preps for the possibility of tossing late PA ballots…

This entry was posted on November 8, 2020 at 10:00 am and is filed under 2020 Presidential Campaign. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.