December 9, 2020

Challenges to Election Results

Sponsored by

Endpoint Security and MDM that puts user productivity and privacy first. Powered by honest security, we believe in security through transparency, trust, education and empowerment. Not sure where to begin? Find out how your team can promote Honest Security within your organization.

“The Supreme Court on Tuesday turned down a request from Pennsylvania Republicans to block the state from certifying the results of the Nov. 3 election for President-elect Joe Biden. With less than eight hours remaining before the ‘safe harbor’ deadline for states to finalize the post-election certification of their votes in the Electoral College, the court issued a one-sentence order denying the plea to intervene from Rep. Mike Kelly and other allies of President Donald Trump.” SCOTUSblog

“In a last-ditch effort to forestall the outcome of the 2020 presidential election, Texas sought on Tuesday to file a lawsuit directly in the Supreme Court, attempting to delay the Electoral College vote and prevent four states – Georgia, Michigan, Pennsylvania and Wisconsin – from casting their Electoral College votes for President-elect Joe Biden… The filing by Texas Attorney General Ken Paxton accuses government officials in the four states of using the COVID-19 pandemic to make changes to their states’ election laws through ‘executive fiat or friendly lawsuits, thereby weakening ballot integrity.’” SCOTUSblog

See past issues

From the Left

The left condemns the dubious legal challenges aimed at overturning the election results.

“‘Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here,’ US appellate Judge Stephanos Bibas wrote last month, rejecting a Trump challenge to votes in Pennsylvania. ‘Democracy depends on counting all lawful votes promptly and finally, not setting them aside without weighty proof,’ added Bibas, a 2017 Trump appointee to the 3rd US Circuit Court of Appeals. ‘The public must have confidence that our Government honors and respects their votes.’”
Joan Biskupic, CNN

“The ultimate goal for Trump was to get one of [the] cases of alleged election fraud in front of the Supreme Court, a court where he had appointed three conservative justices -- most recently Justice Amy Coney Barrett -- and where the President clearly believed he could expect a favorable ruling…

“The Trump strategy utterly failed before the Supreme Court on Tuesday, failing to even convince a single justice to write a word of explanation (or dissent) for why the [Pennsylvania] case would not be considered…

“How did Trump (and his legal team) miscalculate so badly? Simple. Trump believed that the Supreme Court operates the same way he does: Purely transactionally. See, in Trump's mind, he had GIVEN Supreme Court seats to Barrett as well as Justice Neil Gorsuch and Brett Kavanaugh. They wouldn't have been on the court without him (true!) and, therefore, they owed him. That is, of course, not how the Supreme Court works.”
Chris Cillizza, CNN

“The curt denial [of the Pennsylvania case] was the first time the Supreme Court has weighed in on the ever-expanding pile of lawsuits seeking to overturn the election results. And, with that, Trump and his allies chalked up their 50th court defeat in the president’s desperate legal bid to overturn an election he lost by 7 million votes…

“Ultimately, the case was only notable because Justice Samuel Alito had taken it up, set a briefing schedule prior to Tuesday’s safe harbor deadline for states to submit their vote ascertainments to Congress, and referred it to the full Supreme Court to review. That makes it the only one of the dozens of Trump’s mad-dash postelection cases that the court has so far even been willing to consider.”
Jeremy Stahl, Slate

Meanwhile, “The Texas lawsuit is literally asking the court to disqualify the electors from the four swing states that went to Biden. That would plunge the country into a constitutional crisis. It would be the end of democracy in the United States. A majority of nine justices would have replaced 330 million citizens as our rulers. It’s possible that the fantasy that the court would actually do this is rooted in a mistaken understanding of what happened in the Bush v. Gore case. Trump and the Texas lawyers seem to think that problematic case amounted to the Supreme Court giving the election to George W. Bush when Al Gore had in fact won. The reality was more complicated…

“The justices back in the year 2000 stopped a recount that, at the time, was believed to have the possibility of giving the closely contested election to Gore. To be sure, that decision relied on a bizarre interpretation of the equal protection clause to say that differences in recount techniques violated the Constitution…

“But the whole problem that Bush v. Gore addressed was a situation in which it was genuinely unclear who had won the election. It came down to just a handful of votes. The result was, in effect, a coin toss — and the justices stopped the coin from being tossed, assuring that Bush won. I think that decision was blatantly wrong, but in any event, multiple subsequent recounts suggested that Bush would’ve won anyway… [This] lawsuit is a piece of theater, not a credible legal strategy.”
Noah Feldman, Bloomberg

From the Right

The right is not optimistic about successfully challenging the election results.

The right is not optimistic about successfully challenging the election results.

“Senator Cruz is quite right to observe that the [Pennsylvania] Republicans, led by U.S. congressman Mike Kelly of northwestern Pennsylvania, have a point: The commonwealth’s constitution does not appear to authorize no-excuse mail-in voting. Yet the state legislature approved it in 2019 and, with the state’s encouragement during the ongoing pandemic, millions of Pennsylvanians used it in the 2020 election…

“The Pennsylvania supreme court rejected the Republican lawsuit based on the doctrine of laches. The Republicans failed to bring a timely challenge to the use of no-excuse mail-in voting, waiting until after the election to file a suit, which essentially asked the state supreme court to disenfranchise the nearly 7 million Pennsylvanians who voted in the election…

“There was no reason to believe the Supreme Court would disturb a ruling by Pennsylvania’s highest court regarding the commonwealth’s constitution. The U.S. Supreme Court, after all, has thus far ducked important federal constitutional questions raised by the Pennsylvania supreme court’s directives on mail-in voting. If the justices would not decide questions on which they owed the commonwealth’s top court no deference, they were not going to second-guess that court on an interpretation of the commonwealth’s own law.”
Andrew C. McCarthy, National Review

Regarding the Texas case, “Reduced to its essentials, the motion alleges 1) that under the Constitution’s Electors Clause, state legislatures have plenary authority over appointment of each state’s electors; 2) that in each of the defendant states, non-legislative actors (e.g., the Secretary of State) unconstitutionally changed the rules governing this year’s election without legislative approval or ratification…

“3) that these changes favored some voters over others, in violation of the Equal Protection Clause; and 4) in each state, the number of ballots that were counted pursuant to unconstitutional changes in election procedures exceeds the margin of Joe Biden’s alleged victory… Based on a quick review, Texas’s lawsuit strikes me as plausible from a legal standpoint.”
John Hinderaker, Power Line Blog

“The complaint describes how voters in different parts of these states were treated differently. For example, election officials in Philadelphia and Allegheny Counties in Pennsylvania set up a ‘cure process’ for voters in those jurisdictions whose absentee ballots did not comply with state legal requirements. Those noncompliant ballots should have been rejected because state law does not allow such a procedure…

“As a result of this behavior and similar behavior in other states, there was ‘more favorable treatment allotted to votes’ in areas ‘administered by local government under Democrat control.’ This differential treatment, says Texas, violates the Equal Protection Clause of the 14th Amendment…

“Texas does a good job of describing what happened in each state and why the actions of government officials making unauthorized, unilateral changes in the rules may have violated the Constitution and affected the outcome of the election. But by almost any measure, this is the legal equivalent of a Hail Mary pass. While the questions raised are serious ones, it is unlikely that the Supreme Court will address them at this time.”
Hans von Spakovsky, Daily Signal

“Normally, a state would have its Solicitor General represent their claims at the Supreme Court. It seems very unusual to have State AG Ken Paxton taking the helm on this lawsuit instead. No one has mentioned why [Texas SG Kyle] Hawkins’s name is not listed on the filing, but it’s not unfair to assume that he’s missing because he doesn’t want to participate in the suit… This Hail Mary by Texas is likely to land about 50 yards short of the goal line.”
Ed Morrissey, Hot Air

Get troll-free political news.

Thank you! Your submission has been received!
Oops! Something went wrong while submitting the form.