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Don’t blame the Supreme Court for the cowardice or complicity of the fools and knaves who populate far too many of our legislatures. From the federal to the local level, legislatures have been cowering behind the other two branches of government, notably since the end of the “15 days to slow the spread” of a new strain of respiratory virus. Long before then, Republicans at the federal, state, and county legislative levels have largely failed to positively assert the virtue of protecting real voters against the real disenfranchisement of ballot-box stuffing, in all its forms. They have, with exceptions like Ohio and Florida, to name two of a few good examples, failed to zealously protect the franchise at the core of our republic’s continuing viability. So, it is state-level Republican’ts, abetted by the United States congressional delegations of Republican’t fools and knaves, who have created the mess that courts are now being asked to clean up, without the proper political backing.
John Fund and Hugh Hewitt, neither one a conspiracy theorist or fringe media person, both wrote serious books on the entirely real problem of voter fraud in our nation. They both published their books on this topic in 2004, shocked into action by the 2000 presidential election debacle. John Fund wrote Stealing Elections: How Voter Fraud Threatens Our Democracy. Hugh Hewitt wrote If It’s Not Close, They Can’t Cheat: Crushing the Democrats in Every Election and Why Your Life Depends on It. That same year, historian Tracy Campbell published Deliver the Vote: A History of Election Fraud, an American Political Tradition-1742-2004 (on loan at archive.org). Fund followed up in 2012 with a co-authored book going further into the subject: Who’s Counting?: How Fraudsters and Bureaucrats Put Your Vote at Risk. His warning then:
While Americans frequently demand observers and best practices in the elections of other countries, we are often blind to the need to scrutinize our own elections. We may pay the consequences in 2012 if a close election leads us into pitched partisan battles and court fights that will dwarf the Bush-Gore recount wars.
Last last week, we saw Texas and several other states seek the direct intervention of the US Supreme Court, suing other states so that the Supremes would be the proper original court to hear their case. This was doomed to fail, not because of “standing” but because of political reality. Yes, there were very good explanations of “standing” in comments about stories on this very public, serious, newsworthy story. It was well worth public discussion. After all, Senator Ted Cruz, a serious, successful Supreme Court litigator and current important US Senator, was on board with the lawsuit. AND. The result, with all three Trump appointees joining the four leftists on the court, was entirely understandable.
“Standing,” like “ripeness,” and “case or controversy,” is a useful filtering tool that allows courts to avoid directly addressing disputes on their merits. It is true that they also keep every single dispute between two or more people from landing on a court’s docket. There must be limits. You want limits so that you cannot be hauled into any court at any time by anybody who has some bone to pick with you, or who might want to use the legal system to shake you down or ruin you. AND. The Supreme Court will find some party to a dispute has “standing” if they want to rule on/make up law.
Texas and the other states who are outraged by Pennsylvania, Wisconsin, Michigan, and Georgia, have a real point that their citizens and their electors have suffered real harm and will do so for at least the next four years, if the states being sued have in fact fraudulently awarded the actual loser the nationwide victory and power of the presidency (at least) by a series of failures to enforce their own state laws designed to protect their citizens from ballot box stuffing. AND. The Supreme Court was put in a no-win position.
Mark Levin said U.S. courts are “ducking left and right” when it comes to 2020 election lawsuits despite the Democratic Party’s attempts to “turn the whole country into California where Republicans can’t win anything statewide.”
The host of Fox’s “Life, Liberty & Levin” warned his audience over the weekend that shrinking from debates regarding President Trump’s election lawsuits is not an option since everything the Founding Fathers fought for is at stake.
Yet, Mark Levin, a serious scholar and former president of the Landmark Legal Foundation, was raising the alarm before Election Day about the failure of the Pennsylvania state legislature, controlled by Republicans, to assert their Article II authority against the governor and the state supreme court’s usurpations. They did less than nothing. They still do less than nothing.
So, we can agree with his latest cry of alarm against the courts. At the same time, we can point to the Republican’t party’s complicity in corrupting our constitutional system and placing us all at risk of possibly irreversible descent into a pseudo-free dominant party system. Such a system has regular elections always producing the politically correct party winner, like in California.
If the five actual (?) conservative justices had granted Texas and their posse’s request, what would happen? Suddenly the Supreme Court would be in the position of a trial court, arguably going through the whole federal pre-trial process of facilitating discovery and motions on an incredibly compressed schedule. How else could they possibly issue a final verdict, one from which there would be no appeal? That final verdict would require some remedy, some final order.
What final order, what remedy, could the Court grant? There is no political possibility of the Supreme Court simply knocking out all these states and throwing the election into the House and Senate. However exciting the fantasy, that is not something that the Court could long survive as an independent branch. Perhaps they could order all the delinquent states to re-run their election on the same day as Georgia’s run-off election, and to do so by a very clearly defined and federally policed set of procedural rules, from ballot issuance through ballot counting and reporting. But, why would the justices bother doing so, at the risk of the Court’s independence?
The situation would be quite different if the Republican-controlled state legislatures in the disputed states were the ones knocking down the Supreme Court’s doors demanding protection of their fundamental Article II powers against illegitimate encroachment by the other branches of government. Then, Texas and its posse would be just adding support with friend of the court briefs, or perhaps seeking to get in as additional litigants, alongside their fellow Republican-majority state legislatures. Then the Supreme Court could have some confidence that they were ruling squarely within the four corners of the written Constitution and just enforcing state law, as reasserted by the very bodies responsible for passage of those laws.
All of this is not to excuse the Supremes, or any other court, from their own failures over the years, and especially this most significant year. They have allowed gross abuse of the executive power, gross negligence by courts and legislatures at every level. They have twisted the First Amendment into a pretzel over governors and smaller dictators privileging favored businesses over the black letter right to religious liberty, free from government restrictions. The courts have largely covered themselves in ignominy this year.
The fundamental fault lies in the first branch of government, the branch intended from the framing of our Constitution to be the center of government action: our legislatures. Democrats have relentlessly weakened ballot box security with the lie that Republicans want to suppress racial minority votes, the real crime of Democrats. Republicans have largely cowered, while treating stories of Cook County and voting the graveyard as mere jokes, not serious threats to their own interests or our constitutional republic. We are in the very mess of which they were all warned by John Fund in 2012. Do not let a single one of them off the hook.Published in