As you’ve heard, Texas has filed a lawsuit against Georgia, Michigan, Pennsylvania and Wisconsin for violating the “Electors Clause” of the U.S. Constitution, which vests the state legislature with the power to set the rules for choosing electors.
Here is what we know. Using the COVID-19 pandemic as a justification, government officials in the defendant states of Georgia, Michigan, and Wisconsin, and the Commonwealth of Pennsylvania …, usurped their legislatures’ authority and unconstitutionally revised their state’s election statutes.
Let’s take Texas’ argument as true — that what these four states did contradicts the constitution. What’s to be done about it?
There’s a legal principle called “Fruit of the Poisonous Tree,” which says that evidence illegally obtained can’t be used in a trial. The idea is to dissuade law enforcement from using illegal means to get the result they want.
From that point of view, the proper remedy is to disqualify the votes from these states, to discourage states from taking similar actions in the future.
That seems like a pretty harsh remedy. It’s not the voters’ fault that their officials broke the rules, so why should their votes be excluded?
One possible remedy would be to require the states to vote again, but what a circus that would be!
The more likely thing would be that SCOTUS would require each of those state legislatures to decide what to do. They’d have hearings to determine if they could trust the results as they have them, and then vote for the appropriate electors. That appeals to me because it seems very federal and very much against pure democracy, which I don’t like.
I suspect it won’t come to that point. SCOTUS will find some grounds for dismissing the lawsuit and will avoid having to make that call.
Still … it’s an interesting question.
The first set of questions that comes to mind is, how did 4 states, all with Republican legislatures/general assemblies, allow “unconstitutional” election procedures to go into effect? Why weren’t intra-state objections and inter-state litigation taken up prior to the election? Would these objections have been raised if Trump had won in each of those states? So, is this about the rule of law or attempting to find a back-door to subvert the apparent will of voters?
The second set of questions is, if this Texas lawsuit is taken up by SCOTUS and ruled on…does this now open the door for other inter-state litigation. For instance, Texas limited ballot drop boxes to one per county. As well, Georgia has closed some polling locations. Both required some voters to travel excessive distances to vote. Could California or New York submit a lawsuit against Texas and Georgia that alleges they were practicing unlawful voter suppression? What does this do to a foundational Republican principle…states rights?
Lastly, the most fundamental questions are…on what basis is all of this occurring? If widespread fraud is the trigger, shouldn’t that evidence have been seen and validated in a court of law by now? Yet, in many cases fraud is not alleged in lawsuits filed by Trump et. al. in court. Why not?
I completely agree with your first question. Why didn’t the legislators do something when their powers were being stolen?
That doesn’t change Texas’ legitimate gripe, but it is a question worth asking.
About whether the Texas lawsuit opens a Pandora’s box of inter-state litigation, I think they have to prove that it’s a constitutional matter. If they can, then yes, there should be more inter-state litigation. IOW, if states are violating the constitution, they should stop.
Your last question seems beside the point to me. It’s legitimate to sue these states for violating the constitution, whether or not there was widespread fraud, and whether or not the changes had any effect on the election. That is, if the constitution demands that the state legislators make these rules, and if the states did not follow that, then they should be taken to task.
As I understand it, and this may not be accurate, the Pennsylvania legislature tried to challenge the court’s decision, and was told that they could not challenge it before the election because they could not yet demonstrate that any actual harm had occurred.
Then after the election, they were told that the challenge was not timely. If this is true, there’s some weird stuff going on with the Pennsylvania Supreme Court, and the federal courts would be the only possible place to look for remedy.
Gov. Wolf signed the new mail-ballot legislation and other changes into law at the end of October 2019, hailing it as “bipartisan compromise legislation”. 138 mostly Republican House members voted in favor of this legislation. 59 Democrats voted against the legislation.
In the “compromise” counties got $90 million to apply toward buying voter-verifiable paper trail election systems. As well, introduced no-excuse absentee voting to expand voter access. It was considered a trade-off to give Republicans what they wanted: ending the century-old practice of permitting voters to cast a ballot for every candidate from one party through a single button. Democrats wanted the ability to expand voting participation. Each side got a bit of what they wanted.
Republicans were complicit in establishing the new PA legislation and according to reporting were okay with it until a few weeks prior to the election. That’s when the pandemic seemed to increase the probability that more voters would use the new system and possibly provide an advantage for Democrats. As well, Trump was discouraging Republicans from using mail-in voting. Seems they saw the writing on the wall.
I suspect the courts, being aware of the initial bi-partisan nature of this legislation and recognizing how potentially confusing it would have been to change the rules just weeks before the election, instructed Republicans to wait until after the election to see the impact. Having assessed the outcomes and again recognizing the initial support from Republicans, it seems the courts found there were no true grounds overturn the election…especially given there wasn’t any strong, credible evidence of widespread malfeasance provided in court. Yet, a couple of conservative PA Supreme Court judges thought it might be worthwhile to review how the sausage was made on this “deal”.
That said, nothing seemed “weird” about this. It seems the Republicans rolled the dice by agreeing to a new system, but it didn’t work in their favor this round. If there’s something “unconstitutional” then it was done with Republican input. Therefore, the courts seemed to make a reasonable call to not punish voters for legislative buyer’s remorse.
It was the state courts that rewrote the legislation months before the 2020 election, changing the deadline for receiving valid ballots. That is the issue here. That is the issue that the legislature attempted to challenge in court only to be told it couldn’t be done before the election, only to be subsequently told that after the election was “too late” because that would be disenfranchising the voters who already voted under those conditions.
Yes, there are legit difficulties and concerns about how all this played out. It’s all a fait accompli at this point (it seems), but I hope some lessons are learned and improvements made.
I think that the last couple of months of 2020 will go down in history quite simply as the Great Hissy Fit of the GOP.
Exactly, Crowhill. The notion of overturning the election at this point is somewhere between fantasy and civil war by other means. But there are things that need some attention and to posit that there isn’t, is to suggest that either this is the first election in human history where no corruption occurred and/or no one mishandled things out of incompetence or desire for petty power, or else such things should just be ignored until…I’m not sure when they shouldn’t be ignored anymore.
My understanding is different. So, we can agree to disagree.
Yet, Republicans were complicit in the development of the new legislation. As it got closer to the election, concerns were raised and lawsuits were filed. The courts ruled based on the law, State Constitution and US Constitution. If some had issue with court rulings, they had the opportunity to appeal and present their case. Yet, each time that occurred, the outcome seemed to be the same…even up to the Supreme Court. So, each side had their day in court and this is where it landed.
QUOTE: Why didn’t the legislators do something when their powers were being stolen?
Who says their powers were stolen? As well, a part of the reason the PA Supreme court threw out the Mike Kelly case is because adjustments were made in Fall 2019, but they waited until after the election to file a suit. Again, it begs the question…why?
QUOTE: That doesn’t change Texas’ legitimate gripe, but it is a question worth asking.
What “legitimate” gripe? Doesn’t the constitution permit each state to devise its own election procedures. Yet, I would indeed categorize it as a “gripe”. Again, I question if this “gripe” would have been raised at all if Trump had won.
QUOTE: About whether the Texas lawsuit opens a Pandora’s box of inter-state litigation, I think they have to prove that it’s a constitutional matter.
Indeed, even Texas has yet to prove it’s a constitutional matter and not merely sour grapes.
QUOTE: Your last question seems beside the point to me.
Can’t say I’d agree. It appears part of their rationale is states enacted changes that allowed for widespread fraud and made it difficult to detect. Given that, this is the proposed remedy.
Well, all hope is not lost. It seems another Texas lawmaker has proposed a solution to all of this gripe strife…legislation allowing a referendum for voters to cast their ballots on whether to secede from the United States.
https://www.msn.com/en-us/news/politics/texas-lawmaker-to-file-bill-calling-for-vote-on-secession-from-us/ar-BB1bP4Eg?li=BBnbfcL
It’s moot, given the US Supreme Court just dismissed the Texas lawsuit. Seems troubles come in threes. The Michigan Supreme Court also rejected a Trump election lawsuit. As well, a judge in Wisconsin did the same.
I suppose the following Trump statement had a shelf life…“We’re going to win so much, you’ll get tired of winning. And, you’ll say, please, please it’s too much winning, we can’t take it anymore. Mr. President, it’s too much. And I’ll say, no it isn’t, we have to keep winning. We have to win more. We’re going to win more…” I think the election lawsuit win tally might be approximately 1 partial win out of 50 so far.
Well, one part of that statement still applies…”we can’t take it anymore”. Either show us the Kraken or let’s move on. At least that seemed the mantra from Republicans in 2016.
https://www.youtube.com/watch?v=OP55rFXjWxE