Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
Cruz Backs Supreme Review
Ted Cruz came out last night with a highly cogent argument for the Supreme Court taking up the case in Pennsylvania that would disqualify the mail-in ballots.
“Today, an emergency appeal was filed in the U.S. Supreme Court challenging the election results in Pennsylvania. This appeal raises serious legal issues, and I believe the Court should hear the case on an expedited basis.
“The Pennsylvania Constitution requires in-person voting, except in narrow and defined circumstances. Late last year, the Pennsylvania Legislature passed a law that purported to allow universal mail-in voting, notwithstanding the Pennsylvania Constitution’s express prohibition.
“This appeal argues that Pennsylvania cannot change the rules in the middle of the game. If Pennsylvania wants to change how voting occurs, the state must follow the law to do so.
“The illegality was compounded by a partisan Democrat Supreme Court in Pennsylvania, which has issued multiple decisions that reflect their political and ideological biases. Just over a month ago, Justice Alito, along with Justice Thomas and Justice Gorsuch, wrote-correctly, I believe-concerning the Pennsylvania court’s previous decision to count ballots received after Election Day, that ‘there is a strong likelihood that the State Supreme Court decision violates the Federal Constitution.’
“In the current appeal, the Pennsylvania Supreme Court dismissed the claim based on a legal doctrine called ‘laches,’ which essentially means the plaintiffs waited too long to bring the challenge. But, the plaintiffs reasonably argue that the Pennsylvania Supreme Court has not applied that doctrine consistently and so they cannot selectively enforce it now.
“Even more persuasively, the plaintiffs point out that the Pennsylvania Supreme Court has also held that plaintiffs don’t have standing to challenge an election law until after the election, meaning that the court effectively put them in a Catch-22: before the election, they lacked standing; after the election, they’ve delayed too long. The result of the court’s gamesmanship is that a facially unconstitutional election law can never be judicially challenged.
“Ordinarily, the U.S. Supreme Court would stay out of election disputes, especially concerning state law. But these are not ordinary times.
“As of today, according to Reuters/Ipsos polling, 39 percent of Americans believe that ‘the election was rigged.’ That is not healthy for our democracy. The bitter division and acrimony we see across the nation needs resolution. And I believe the U.S. Supreme Court has a responsibility to the American people to ensure that we are following the law and following the Constitution. Hearing this case-now, on an emergency expedited basis-would be an important step in helping rebuild confidence in the integrity of our democratic system.”
The initial lawsuit is summarized as follows:
Conservative Rep. Mike Kelly, R-Pa., and others contend state officials had no right under the Pennsylvania Constitution to expand mail-in voting in 2019, and the state Supreme Court was wrong to uphold that statute. The group called it “an unconstitutional, no-excuse absentee voting scheme.”
“Pennsylvania’s General Assembly exceeded its powers by unconstitutionally allowing no-excuse absentee voting, including for federal offices, in the election,” the challengers argued in court papers. As a result, the election was “conducted illegally.”
The group seeks an emergency injunction from the nation’s highest court to block the completion of any remaining steps in the state’s certification of Pennsylvania’s 2020 election results, which took place last week. The petition was submitted to Associate Justice Samuel Alito.
This is not a fraud case – it is about the legality of the changes to voting law. It will be interesting to see what the Supremes do – especially Clarence Thomas, who is very much about states’ rights.
Published in General
I’m glad Cruz is making this argument.
After this recent questionable election, I hope we end up with something similar to the Federal Election Commission that addresses voting procedures, at least for national elections.
In Massachusetts the Republicans and Democrats often work together on nominating and voting procedures. It can be done peacefully. :-)
Yesterday I looked up the absentee and mail voting procedures for the mail-in ballots. I was curious how standardized the system was throughout the country. There’s quite a bit of (healthy, in some ways, I think) variation.
It would not have affected this recent election, but it was disturbing to see that the following states simply sent out ballots willy-nilly to anyone and everyone: California, Colorado, [Washington, DC, not a state, but . . . ], Hawaii, Montana, Nevada, New Jersey, Oregon, Utah, Vermont, and Washington. That puts an insane number of ballots out there that are not claimed by anyone. It’s also pretty horrible to think of these important documents, that no one signs because of the secret ballot protection for voters, being tossed around in the country as if they had no meaning and no significance. And it’s just plain stupid and sloppy.
In Massachusetts and most of the other states, registered voters were sent postcards that the recipient voters would have to return to request a ballot. The voting lists in most states are terribly unreliable with deaths and name changes and people moving from one place to another. It is an important check on the system to insist that, at the very least, a voter return the postcard and request a ballot. It’s nowhere near perfect, but it’s better than just sending out millions of ballots.
Ted Cruz represented cases before the Supreme Court before he was a Senator, so he’s in a good position to know how to make this argument. Well done, Senator Cruz!
I know he doesn’t want to, but he would make a great Justice.
Exactly this!
The idiocy of Blue Yeti et al failing to recognize that challenges to these election changes were moving before the election. It’s why you have statements from the PA SC upholding the decisions.
They created a situation where no justice could be had and they support it all.
There will be no justice until the issue is taken out of the hands of the Pennsylvania courts. There might not be anyway, but we hope for better things from the US Supreme Court.
If the US Supreme Court does not accept appeals from the Trump legal team, Trump will likely accuse Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch of being hapless or corrupt, just as Trump has accused Republican governors in Georgia and Arizona of such things.
Even Bill Barr, Trump’s attorney general, said yesterday that investigations determined so far show that there isn’t fraud that would change the outcome of the presidential election.
I predict that either the US Supreme Court will not accept Trump’s appeals or that they will accept the appeal and rule against Trump, just as one of Trump’s judicial nominees ruled against him in the 3rd circuit federal court of appeals.
I hope SCOTUS doesn’t fall into the trap of “If it doesn’t change the outcome, we’re not going to rule in your favor” way of thinking. If wrongdoing was proven on a large scale – even if it wasn’t large enough to change the outcome – the entire election should be ruled invalid. A bank robber who is foiled in his attempt is still a bank robber and must be punished . . .
Yes. Because fraud MATTERS and must be dealt with even if one cannot prove it changes the outcome of any given election.
This is helpful for Ted to share. Most GOP politicians are too dumb to figure this stuff out, but think they are too smart to stick with talking points. The Dems are much better at repeating talking points.
PA and WI have the same issues. Illegal voting procedures were pushed out and allowed by local courts.
GA, NV and MI have problems with ballot integrity problems with illegal procedures being used and local courts allowing.
This DOJ statement has been so widely reported that they came out with a clarification, stressing the words So Far, and that a rigorous investigation is still ongoing
The “so far” clarification is trivial because, of course, the Department of Justice can not presently analyze voter fraud claims presented to them in the future.
I can say I am 54 years old “so far.” But substantively this is not different from me saying I am 54 years old.
I don’t have an opinion on the merits of this PA case, but I don’t think fraud is an issue in it. Also, I do think it’s worth pointing out that the “if it doesn’t change the outcome…” rule is not a “trap.” It’s not a legal gimmick or a trick. It’s an old and solid and necessary legal principle. It is applied in cases all across the country (and probably the world) all the time. An example I’ve seen a number of times is when a person’s 4th or 5hth amendment rights are clearly, but not materially, violated. In those cases, the appeals court will let the convictions stand. I have seen the courts ignore, for example, improper arrest warrants because the illegal arrest didn’t have any real impact on the case, except getting the accused before the court. Basically, the courts do not overturn convictions even when there is a clear constitutional violation if that violation did not impact the result. That’s just the way it is.
Election fraud or voting fraud can still of course be prosecuted without reference to the results at all, but if you want the court to overturn an election, you are going to have to show the defect was sufficient to affect the result. That is absolutely a fair and necessary way for the court to proceed.
If this legal principle is what ultimately leads courts to deny relief to Trump, it won’t be some gimmick the courts thought up to get rid of him, it won’t be judicial activism, it will be the same way the courts operate all the time.
Please be precise with your language. We have two elective offices, President and Vice-President, that serve all Americans and for whom all eligibleAmerican voters may vote. We do not have any national elections as far as I know. This is why it is so difficult to get the Supreme Court to be involved in these disputes. Their sole role revolves around interpreting the US Constitution in light of what may be going on in a state whereas most issues are going to relate to state election laws.
This is a really bizarre way to describe anticipated rulings from the Supreme Court. They rule on constitutional issues not for or against Donald Trump. Your attitude is exactly what has destroyed the congressional ability to handle the court nomination process and now the Democrats want to pack the court to get rulings in the manner of your thinking.
Right. The FEC
I think a federal-level commission with a similar scope but for voting procedures would be a good thing. :-)
The merits of the case are the legality of the changes.
Fraud is not part of the case – but there is considerable data that the changes enabled fraud.
There are good procedures that are violated or ignored in order for fraud to happen. And there are also bad procedures that, even if followed, enable fraud.
And the changes were pushed through by Democrats and the rulings by the Pa. state court were all for the purpose of enabling the fraud opportunity. Or do we populate our legal profession with individuals who have zip understanding of constitutional law and then elect those to state courts?
Would you please stop being so damn argumentative. I did not claim the statement was non trivial. I merely added to the information, which was incomplete.
I’m getting pretty fed up with conversations becoming so adversarial.
Right. And no court has ruled on those merits yet. The most SCOTUS can do here is rule that the PA court should not have dismissed the case on the laches issue, and send it back to be considered on the merits. I wouldn’t be surprised however, if SCOTUS declines to get involved in how PA handles the laches defense.
My main point is that fraud can be prosecuted irrespective of the election results, even if it had no impact. If Trump is seeking to overturn the results, by contrast, he will have to show, and should have to show, that the fraud was significant enough to change the outcome.
He would, I’d also support him again for President.
He’s one of the ‘Good Ones’.
We might need to move the Inauguration back to April and shift the electoral vote in order to allow for legal action to combat fraudulent elections.
I was being sarcastic or facetious with this comment. Lawyers, like those at Lawfare, understand the the Constitution, many of them just don’t like it. So we see all this activity supporting fraudulent elections that help get numbers to elect Democrats while leaving impossibly short time period to contest, either civilly or criminally.
The Pa. Supreme Court is likely aware of exactly this but just counts on the delay caused by the back and forth to cause all the timeframes for action to pass.
Possibly, but most likely they were just doing their jobs as best they can. Believe it or not, it is possible for Trump to actually properly lose a legal case. And an election, for that matter. It is worth considering that that is what has happened here, rather than going further down these conspiratorial rabbit holes that eventually end up with half the country in on the plot to steal the election.
You are mischaracterizing what Barr said. You are in the company of many, many other people. I do not understand what is causing so many people to have an apparent inability to understand the English language. Consider these two statements:
What Barr said was essentially the former. What you, and many others, are claiming is that he said essentially the latter.
Media reports that I have read have uniformly misinterpreted Barr’s statement. It is understandable, HW, that you would be misled by such reporting. We need to be extremely skeptical of claims made by the media. They are lying liars.
We need to be equally skeptical of claims made by generally right-wing folks in the alternative media or, worse yet, on platforms like Facebook and Twitter.
We are awash in a sea of misinformation. We need to go to original sources, and carefully analyze what was actually said and what the facts actually show.
Nonsense.
On November 9 Bill Barr sent out a memo to the Department of Justice asking them to look into claims of voter fraud. Yesterday, December 1, which is 22 days later, Barr announced the results of the department’s investigation.
Adding the “To date” qualifier does not make the findings of the DOJ any less important.
In 12 days the electors will cast their votes for Biden and Trump.
I’d be interested to read what the follow-up questions were, or should have been:
Oh, “not in numbers great enough to affect election” – well what did you find? Where did you find it? How many votes? Tell us about the suspects? Have they been charged? Are they in custody? Have they named any accomplices? What is the DOJ “threshold” number-wise between isolated voter fraud and wide-spread voter fraud. What was the nature of the fraud? How was the fraud perpetrated?
Our press sucks.
I was hoping he would be a second term nominee.
Wishing, even wishing so hard you lie, does not always make it so.
I think the PA Supreme Court needs a serious kick in the behind. They have pulled this total BS gambit and the news media (and never-Trump pundits) have backed this nonsense to the hilt. Senator Cruz has it exactly. The election law can’t be changed this way or there would be no election law at all. The PA Supreme Court can’t insulate against a challenge using this bogus Catch 22 technique.
SCOTUS should hear this case asap.
Regards,
Jim
I don’t know the legal definition, but Fraud in the actual historical sense includes confidence games. The originator of the term “confidence” game was a particular well-dressed man who would go up to another man and say, “Excuse me sir, but do you have the confidence to give me your watch?” I believe he said, “Meet me back here in an hour.” The victim was operating under the presumption that this was a loan, and that the watch would be, quite naturally, returned.
The fraud was in speaking the particular phrasing of the question and in expecting the victim’s reliance on a level of civility and legal propriety or law-abiding-ness. In a situation on the sidewalk there is an contextual assumption that the certain social and legal propriety will apply.
Similarly, the state legislature relied on a level of contextual propriety in the eyes of the general public that this was good law and constitutional, which proved to be an ill-founded credulity; and the PA SC relied on the appearance of a certain credited contextual level of legal propriety which also proved to be unfounded.
These doings are as fraudulent as any confidence scam.