SCOTUS is caught between a rock and a hard place…

Having put the Texas case on its docket, SCOTUS faces very hard decisions
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First, some essential background…

The complaint goes directly at the the Court’s constitutional fortitude and sovereignty.

Either the Constitution matters and must be followed, even when some officials consider it inconvenient or out of date, or it is simply a piece of parchment on display at the National Archives.

The fundamental decision that the Court must make is whether or not the “defendant states” (PA, GA, MI, WI) — specifically, their election officials and state courts — acted unconstitutionally when they — not their respective legislatures — changed election laws in the run-up to the 2020 election.

This case presents a question of law:

Did Defendant States violate the Electors Clause by taking— or allowing — non-legislative actions to change the election rules that would govern the appointment of presidential electors?

The crux of the argument:

Using the COVID-19 pandemic as a justification, government officials in the defendant states … usurped their legislatures’ authority and unconstitutionally revised their state’s election statutes.

The defendant states accomplished these statutory revisions through executive fiat or friendly lawsuits, thereby weakening ballot integrity.

These same government officials flooded the defendant states with millions of ballots to be sent through the mails, or placed in drop boxes, with little or no chain of custody and, at the same time, weakened the strongest security measures protecting the integrity of the vote signature verification and witness requirements.

The complaint goes into detail (with numerous precedent cases cited) to establish the venue (why SCOTUS must decide), their standing (in effect, their states constitutional votes were nullified) and the constitutional rationale.

OK so let’s cut to the chase…

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SCOTUS must decide a fundamental  question: Were the defendant states’ actions constitutional or not?

It’s a binary choice ‘yes’ or ‘no’.

There’s no middle ground.

Government is not free to disregard the [Constitution] in times of crisis. Roman Catholic Diocese of Brooklyn, New York v. Cuomo

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So, what if the Court rules that the defendant states’ actions were constitutional?

That punts past the current dispute … but opens up future disputes galore that cut both ways.

Consider, for example, if all GOP Secretaries of State  ruled — without state legislative action — that voter IDs and proof-of-citizenship were required for all ballots (in person and by mail) in all elections.

Imagine the uproar from the left.

But, too bad, the Texas case will have established the SCOTUS precedent.

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So, what if the Court rules that the defendant states’ actions were unconstitutional?

That opens up another can of worms:

What’s the remedy?

In theory, the Court could order that all ballots that didn’t conform to the operative legislative laws don’t get counted.

That makes sense in theory, but the defendant states have no way of determining which ballots are associated with the unconstitutional verification practices.

For example, the signatures supporting mail in ballots are on over-wrap “sleeves”, not on the ballots themselves.  Once a signature is OK’ed (or, by instruction, ignored), the sleeve and the ballot are irretrievably separated.  There’s no way to go back and ID the ballot associated with it’s verification sleeve.

Of course, the Court could order that no mail-in ballots should be counted since the “pure” are unidentifiably mixed with those that are illegal.

That remedy would throw out millions of babies with their bath water … disenfranchising millions of legitimate voters.

Hmmm.

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So, what to do?

I only see 2 remediation options…

The Court could  rule that the defendant states’ actions were unconstitutional but that — in the current case —  the remedies would be too severe and too late in the process … so no remedy will be enforced, but all states will be admonished: “don’t do it again, or else”.

Though a total “wimp out”, that ruling wouldn’t surprise me.

The other option is to throw the hot potato back to the defendant states’ legislatures … let them decide.

Most likely, that would result in the state legislatures picking the Electors who would ultimately cast the states’ electoral votes for president.

Since the defendant states’ legislatures are GOP-controlled, that might be enough to reverse the election’s outcome.

That’s a long-shot, but not out-of-the question.

This could get very interesting.

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P.S. There’s also another undercurrent:

If SCOTUS rules that the defendant states actions are constitutional and Biden’s election win stands … and, if Dems win the 2 Georgia Senate seats … then the “sanctity” of the SCOTUS will be at stake.

The Dems have threatened to pack the Court … they likely would follow through … and the esteemed position of the SCOTUS would be forever diminished.

Of course, the Justices won’t be swayed by their own self-interests, right?

 

One Response to “SCOTUS is caught between a rock and a hard place…”

  1. Elaine Hammers Says:

    Seems like this lawsuit should have been filed before the election when something might actually have been done about it. I doubt SCOTUS has the guts to void ballots after the fact.

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