What does one do when partisan state judges deliberately ignore well-established rules of law to thwart Republican efforts to contest election results? One goes to the Supreme Court, if one can get in there. Last Friday, SCOTUS rebuffed Texas’s lawsuit, joined by most of the states Trump won, seeking original jurisdiction in the Supreme Court. The suit was premised upon allegations of massive fraud in four battleground states — Georgia, Pennsylvania, Michigan, and Wisconsin.
Legal Status. The vote was 7-2, Justices Alito and Thomas dissenting, stating that the Supremes should not refuse original jurisdiction and that oral argument should have been held. Reading minds at the Supreme Court is a modern version of Kremlinology, especially when the ruling is one paragraph. As the seven in the majority hid behind a per curiam (for the Court, hence unsigned) opinion, such tea-leaf reading is all that is left to us.
My guess is that the only way the Court would have tossed the vote results is if at least one of the three left-wing justices — more likely, two — all appointed by Democrats, joined in. The three Trump appointees would have been accused of pure politics and likely would have faced a partisan impeachment in the new House, to say nothing of vigilante mobs harassing them and their families. Focused always on fear of damage to the Court’s prestige, the chief justice has become a weathervane, pointing whichever way the political winds blow. In this case there was a Category 5 political hurricane headed to the Capitol. Thus the left-wing justices held the high cards.
Flashback: Florida 2000. Start with the 2000 Supreme Court decision in Bush v. Gore. Then-Chief Justice William Rehnquist wrote in his concurring opinion that a “significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question.” If massive fraud — or evidence for it presented to the degree possible in the hyper-compressed time frame mandated by the federal Constitution — does not qualify as a “significant departure,” what does? State officials with zero authority to ignore state statutes did so, with impunity, and state appeals courts summarily dismissed, along party lines, all appeals.
Compared to 2020, the Florida 2000 contest was amateur night. Team Gore was stunned when they lost Florida by a whisker — aided by false media broadcasts that declared Florida polls closed an hour early on the Panhandle, heavily GOP; thousands of voters went home, thinking they were too late to vote. We might have been spared the risible charade of divining “voter intent” from the galaxy of chads that America, and a world watching the spectacle in astonishment, came to know all too well.
Team Gore’s challenge was hatched out of cold pizza–fueled brainstorming improvisation, leading to a challenge mounted in four heavily Democratic counties. There was zero evidence of GOP vote fraud. They simply figured that in a selective recount they could resort to the time-tested ability of Democratic election officials to discover batches of votes in all sort of odd places — after searching everywhere except inside alligators and pythons.
The Gore case started in state and federal district courts, involving a complex series of cases that played out over several weeks. It led to the first Supreme Court ruling in the Florida 2000 contest, in Bush v. Palm Beach County Canvassing Board. The narrow scope of the contest permitted expedited, but otherwise reasonably normal, litigation procedure.
Then, by 7-2 on the constitutional question (only 5-4 in whether the recount could continue after the “safe harbor” date had passed), the Supremes provided adult supervision. They were told at oral argument (which I attended, sitting in the section reserved for members of the Supreme Court Bar) that chad-counting criteria could vary not merely (a) from county to county, (b) from precinct to precinct, and (c) from polling place to polling place within a precinct but also (d) from table to table within each polling place. This persuaded seven Supremes that this low-grade vaudeville farce had to end, and so it did. One Democrat appointee, Stephen Breyer, still on the Court, crossed over on the substantive question. Democrats’ toxic reaction to the 2000 ruling ignited the hyper-partisan intensification of political disputation that now has reached full, ugly fruition.
Election 2020. Conversely, the complex tapestry of various kinds of apparent fraud and other illegality playing out in six states in 2020 effectively precluded rapid, multi-stage litigation. A fast-track route to the Supremes could only come through the “collateral order doctrine,” which arose out of the 1949 Supreme Court case Cohen v. Beneficial Industry Loan Corp.
Justice Robert H. Jackson delivered the opinion of the Court. Though the main focus of the case was on technical applications of shareholder lawsuits, the predicate for an appeal during ongoing litigation in the trial court — what in legalese is termed an interlocutory appeal — was the necessary preliminary question the Supremes addressed. Federal statutes provide for (a) appeal from final orders issued by a lower court and (b) appeal from interlocutory orders issued by a lower court, in specialized classes of cases. In explaining why resolution of one issue in the 1949 case could not await completion of the trial, Jackson wrote:
This decision appears to fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. The Court has long given this provision of the statute this practical, rather than a technical, construction.
This time, it was nothing resembling amateur night. Starting with H.R. 1 in January 2019, a conspiracy to facilitate vote fraud was fueled by some 300 lawsuits filed nationwide, plaintiffs including not only Democratic officials, but pseudo-neutral groups like the hard-leftist League of Women Voters. All the suits sought to increase the use of mail-in ballots, whilst eviscerating ballot integrity and authenticity protections. These were filed despite every major high-profile panel that looked at voting issues, from the 2005 Carter–Baker Commission to the National Academy of Sciences report in 2018, having stressed that mail-in ballots were especially prone to fraud, and thus special protection was needed to ensure ballot integrity and authenticity.
Historical Precursor: Election 1876. In his magisterial 2005 account of the 1876 election, Centennial Crisis: The Disputed Election of 1876, the late Chief Justice Rehnquist, who during his tenure became a nonpareil historian of the Supreme Court as well, wrote about vote-fraud dangers:
On November 10, 1976, President Ulysses S. Grant, who was to leave office March 4, 1877, sent an order to Gen. William Tecumseh Sherman:
“Instruct General Augur, in Louisiana, and General Ruger, in Florida, to be vigilant with the force at their command to preserve peace and good order, and to see that proper and legal boards of Canvassers are unmolested in the performance of their duties. Should there be any grounds of fraudulent counting on either side, it should be reported and denounced at once. No man worthy of the office of President would be willing to hold the office if counted in, placed there by fraud; either party can afford to be disappointed in the result, but the country cannot afford to have the result tainted by the suspicion of illegal or false returns.”
That election featured several states sending competing Elector slates to the Electoral College — including Florida, which sent three such delegations. The College was stalemated, and an Election Commission was formed in January 1877 to resolve the matter. Ultimately, a special panel was formed: five House members, five senators, and five justices of the Supreme Court. With eight Republicans and seven Democrats, the foreordained final outcome, just two days before the inauguration date, was to choose, by party-line vote, Republican Rutherford B. Hayes over New York’s Samuel Tilden. This decided the race, despite Tilden having come within one electoral vote in the College, and it being widely believed he had won the popular vote.
Rehnquist quotes historian James Ford Rhodes, writing in 1906, describing the mood in the country:
The dispute in Congress, the press and the public was fierce. The Democrats kept up a persistent cry of fraud but the Republicans retorted that the fraud was on the other side….
No prospect was apparent of their reaching any common ground…. Some senators and representatives derided the idea of danger; but anyone, who lived through those days in an observing and reflective mood, or anyone, who will make a careful study of the evidence, cannot avoid the conviction that the country was on the verge of civil war. The number of men out of work and in want owing to the depression of business, the many social outcasts in the community, whom the railroad riots seven months later disclosed, constituted a formidable army who were ready for any disturbance that might improve their condition or give them an opportunity for plunder. The mass of adherents on each side, which was clearly indicated by the closeness of the vote in many Northern states, shows what a terrible internecine conflict would have followed a bloody affray on the floor of Congress.
Much of this history recounts what could be headlines today, save for the lack of any allegation that today’s Republicans are guilty of vote fraud, and the unlikelihood of a physical fight on the floor of either house of Congress.
The 2020 Court Fails to Respond to a Republic-Level Crisis. Election 2020 was our worst electoral crisis moment since the 1876 contest. The Court in 2020 should have seen that the vast, lasting damage that could be wrought by concerns about massive fraud stealing the presidential election can irremediably sunder an already badly fractured nation. This called for action, as the states were not up to it. The Supremes were all that was left to stop it, before the Electors were to meet on December 14. Bush v. Gore could have provided the jurisdictional predicate for this, via the Pennsylvania case in which Justice Alito’s order to segregate ballots had been flagrantly violated, when election officials maliciously commingled ballots arriving late, so as to conclusively prevent figuring which ones should be discarded.
Even if the justices could not see their way towards that result, they owed the voting public more than a cryptic paragraph. Thomas Jefferson ended his first paragraph of the Declaration by writing, of himself his fellow signatories, that “a Decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the separation.”
The Supreme Court, for its part, will do everything possible to avoid ruling in these cases. In addition to the leverage that the left-wing justices hold, there is another reason the Supremes likely will avoid the 2020 election cases: statistical improbability — not an element in the 2000 kerfuffle — is too slender a reed when flipping a presidential election is a consequence.
Thus, on December 15 the Supremes docketed an appeal concerning vote fraud allegations in Michigan. The Court entered a replay date of January 14. And on December 20, Trump attorneys filed a motion for expedited review of allegations of massive fraud by Pennsylvania election officials and coverups by state judges. They also filed a petition in support of their motion. On December 23, the Court set a reply date of January 22. According to Trump counsel John Eastman, who filed the petition with the Court, the initial docket entry is automatically a 30-day reply schedule. The Court still may grant an expedited hearing.
All of this tees up the Elector Certification Battle Royal in Congress:
As a recent historical note, in 1960 Hawaii sent two slates of Electors to Congress; it was the last time multiple slates were sent. The GOP governor’s slate backed Richard Nixon, but Democrat legislators sent up a John F. Kennedy slate, which Congress seated. Nixon, as sitting vice president, resolved the disputed seating in favor of JFK; a judge-ordered recount had led to a change in the popular vote tally, from 141 votes in Nixon’s favor to 115 votes in favor of JFK — with 93 percent of voters turning out to cast their first votes as citizens of a state.
Those were vastly different times: In 1960, the differences between the two parties were modest at best, with neither party threatening to pack the Court, admit new states on a partisan basis, or assail the Bill of Rights.
A growing coterie of GOP lawmakers are planning to press their fellow legislators to support GOP slates from construed battleground states. Already, legislators from Alabama, Mississippi, and South Carolina are on board. Florida Rep. Matt Gaetz has stated that he, too, will support the GOP slates. What should guide their efforts?
A Moral for the 2020 Post-Election Contest:
”Never give in. Never. Never. Never. In nothing great or small, large or petty, never give in, except to convictions of honour and good sense.”
Yet another sage of a bygone age has advice on reaching compromise. The former Secretary of Just About Everything, George Schultz, upon turning 100, wrote an op-ed in which he said that trust always is the key to reaching agreements with opposing sides:
Dec. 13 marks my turning 100 years young. I’ve learned much over that time, but looking back, I’m struck that there is one lesson I learned early and then relearned over and over: Trust is the coin of the realm. When trust was in the room, whatever room that was — the family room, the schoolroom, the locker room, the office room, the government room or the military room — good things happened. When trust was not in the room, good things did not happen. Everything else is details.
So which applies best in our situation? Trust cannot be sustained if what appears to be a brazen attempt to steal a presidential election is proven true. Contesting the outcome to rectify the result is, for the GOP, the only honorable option, and rewarding fraud only will encourage more election theft in future federal elections. As for “good sense,” it dictates that we fight now, as a loss here weakens our position in future contests by setting strong legislative and judicial precedents and also by emboldening our adversaries and deflating our allies.
Before proceeding to the exact steps that await the Electors, there are tactical considerations that should guide the Republicans:
What Happens on Jan. 6, Per the 12th Amendment:
January 20: President and Vice-President:
Should the Speaker decide to remain in the House, next in line is the president pro tempore of the new Senate — in this case, likely Chuck Grassley (R-Iowa), as the choice will have been made when the new Congress convenes on Jan. 3 — two days before the Georgia run-off election votes are held. To take office as president, he would have to resign his office and his seat in the Senate (which would then be filled by a special election).
Should he elect to stay in the Senate, cabinet members follow, in order that the departments were created. First in line would be Secretary of State Mike Pompeo — unless he resigns before Jan. 20 — which I am sure he would not do (or — equally unlikely — is fired by Trump).
January 20: Vice President:
A final noteworthy development: The Supremes recently held 6-3, with the three Democratic justices dissenting, that the issue of whether for purposes of the post-2020 reapportionment of House seats, persons illegally in the U.S. cannot be counted, is not ripe for consideration.
Bottom Line. The Supremes should have shown America’s voting public Jeffersonian consideration, but they did not do so. It is true that the Supremes often issue one-paragraph rulings, but these are either routine cases or ones in which the law is settled by prior precedents. The 2020 election presented a novel set of facts suggesting a conspiracy to commit election fraud on a historically unprecedented scale and scope. In such a case, a one-paragraph ruling is woefully inadequate. In addition, clearly the Supremes did not wish to offer legal justification for their decision, which inevitably would have involved in-depth discussion of the fraud allegations. Such would have plunged the justices deeply into a thicket of issues that have engaged intense passions on both sides, and all this in a highly combustible, harshly adversarial mass media and social media spotlight.
Supreme Court justices take two oaths of office. In pertinent part, the justices swear “support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same.” It is hard to square their decision to punt on cases alleging the most consequential election fraud in modern times, an issue that already has fractured the body politic for generations and set the stage for conflict to come.
Author’s note: This is the first of three articles on developments in politics and law in the 2020 presidential post-election controversy. The next article will cover specific state-by-state evidence of traditional forms of vote fraud. The third article will focus on arguments surrounding claims of electronic vote-machine fraud.
John C. Wohlstetter is author of Sleepwalking With the Bomb (Discovery Institute Press, 2nd ed., 2014).