A number of people have asked about the recent United States Supreme Court decision that rejected the “last gasp” attempt to overturn the election of President-elect Joe Biden. (Texas v. Pennsylvania, et al.) The court ruled that Texas lacked standing to contest the election process in Pennsylvania and four other states that Mr. Biden won. Notably the Supreme Court opinion was not signed by any of the justices but rather issued as if per curiam. It is a childish way to avoid responsibility for the decision.
The decision to dismiss may be correct but it lacks a critical rationale at a time when Americans are left to speculate about the fairness of its elections. Republicans and conservatives (I count myself among the latter but not the former) have complained bitterly about “fairness” in the election – what they really mean is that that the election lacked sufficient transparency in order to assure American voters that there was not cheating in the election process – or at least cheating of a magnitude that it actually effected the outcome.
So let’s talk about cheating/fraud before we get to the actual decision of the Supreme Court. But before we do, let’s remember that the founders of the United States Constitution rejected the idea of a nationwide popular vote to elect the president – they feared a domination of a handful of states with large populations (seaports primarily) would so dominate the election process that the votes of more sparsely populated (inland) states would, in effect, be rendered pointless. So they created the Electoral College that based the final vote for president on a state-by-state proportional basis. Their concern proved to be prophetic because a handful of states (e.g. New York, California, Florida, Illinois, Pennsylvania, New Jersey and Texas) could, in practice, render the votes of those who live in (as former President Barack Obama derisively tagged them) those “big square fly-over states” that dominate Mid-America. You may wonder why the Democrats are so insistent on eliminating the Electoral College – that’s the reason.
So back to the actual election. Was there cheating? Absolutely! There are literally thousand of instances documented by observation, affidavit, and review. Was the cheating/fraud of sufficient magnitude that it would change the outcome in any given state or states? We don’t know. To date, nobody has provided evidence of cheating/fraud at that level. Some lawyers representing President Donald Trump have engaged in puffery, conspiracy theories, projections, and data sampling to suggest that the scale of cheating/fraud was of sufficient scale. There may have been, but in America the burden is upon those making the allegations to prove them by a preponderance of the evidence – they have failed to do that thus far although some of the litigation occurring in various states may actually get there. And if they do, the final remedy will be to nullify the vote of the Electoral College and require it to certify a new result based upon the outcome of those states in which the election was successfully challenged.
You may wonder what will happen to the acts of Congress and the issuance of executive orders should the electoral college certifies that Mr. Trump, in fact, won sufficient electoral college votes to be re-elected president. It is more or less a moot question until someone provides evidence of sufficient cheating/fraud that may actually result in a change in the outcome of the election. However, in all probability, the Supreme Court would nullify any laws or orders executed by Mr. Biden with the exception of appropriations. (This is the point at which constitutional scholars – including the self-nominated constitutional expert, Mr. Obama, whose performance suggested that he probably never even read the Constitution – are having apoplexy over the simplicity of the remedies without their pretentious musings.)
So what kind of cheating/fraud are we talking about? There appears to be at least five major categories and most of them are motivated by the ease at which “vote by mail” lends itself to cheating/fraud:
- The failure to require proof of identity when voting. This in turn permits:
a. The dead to vote – some that had been dead for several election cycles.
b. Illegal aliens to vote – no proof of citizenship was presented
c. Interlopers to vote in lieu of the actual person – some voters were turned away the polling stations because someone had already mailed a ballot bearing their name with a forged signature
d. Multiple state voting – ballots were mailed to people who had moved from both the states of their old and new residence.
- Ballot harvesting. This is a favorite trick of the public employee unions who gather ballots with the alleged purpose of delivering them to polling stations but instead use voter registration polls to cull out the ballots of Republicans and conservatives.
- Votes received after the deadline – this appears to be the one of the allegations in Pennsylvania which in turn allows interested parties to know how many votes they need to manufacture in order to win. This is a curious one because for ages election officials failed to count mail-in votes (particularly of service men and women) unless there was a sufficient number of mail-in ballots to change the outcome of voters who appeared at the polls. Now, in some states, they are not only counted but encouraged.
- Corrupt election officials. These are instances in which the election officials manipulate the actual votes to alter the outcome – think of the election of President John F. Kennedy in 1960 and the results from Chicago that awarded Mr. Kennedy a sufficient number of votes to win Illinois and thus the presidential election. The manipulation includes ignoring and/or destroying actual ballots, stuffing the ballot box, and certifying false numbers.
- Computer fraud. Allegations have been made, but yet remain unproven, that both voting machines and the computer driven counting machines were manipulated to change the actual results. Is it possible? Absolutely. Digital fraud has reached new levels and virtually any computer (that is what the voting machines and counting machines are basically) can be manipulated through hacking and/or manipulation by algorithm changes. However, any manipulation registers within the computers themselves and can, with skill, be discovered – discovered unless the hard drives and/or computer chips are replaced. This fraud will be enhanced if the Democrats can ever enact electronic voting using the internet.
So, returning to the Supreme Court’s recent decision. The commencement of the challenge pitting one state against another was a clever strategy by the Texas Attorney General because under Article III, Section 2 of the Constitution litigation between states provides original jurisdiction in the Supreme Court thus avoiding the federal district and appellate courts and the significant delays that would impose before final resolution. However, original jurisdiction still requires the pleading of facts that give rise to a judicable controversy. And that is where the Supreme Court hung its hat (erroneously I believe):
“The State of Texas’s motion for leave to file a bill of
complaint is denied for lack of standing under Article III of
the Constitution. Texas has not demonstrated a judicially
cognizable interest in the manner in which another State
conducts its elections. All other pending motions are dismissed
Justices Samuel Alito and Clarence Thomas would have granted leave to file suggesting that Article III does precisely allow the filing of such actions but reserving judgment on the merits until additional hearings. And they were right.
On the other hand, the burden is upon Texas to demonstrate that the alleged fraudulent actions of Pennsylvania adversely impacted Texas as an entity. In this instance, Texas would have had to plead sufficient facts to show that Texas has a judicable expectation that electoral votes of other states obtained by fraud and corruption would diminish the proportional representation of
Texas in the outcome of the Electoral College’s certification of results.
Only a lawyer would recognize these nuances and unfortunately I am one. In the end the court was wrong to deny permission to file the lawsuit, and Texas was wrong in not ordering its pleadings to demonstrate injury to the state as an entity. I’ll be surprised if there is a single reader who will agree with my conclusions, but they are what they are.