Correct, and I think the obvious disparate treatment of voters who voted in person versus those who voted by mail, with vastly different deadlines and security measures, has created an obvious equal protection issue. I would also think that there must be serious civil rights questions when voters who voted properly and in good faith can have their votes diluted or canceled by either illegal votes or fraud. Of course, fraud must be proven, but there is abundant evidence in every state of large numbers of illegal votes, beyond the margin of victory.
If the dead, non-citizens, non-residents, or the unverifiable are permitted to vote, then the right to vote no longer has any meaning. The right to ensure that one’s vote is not disenfranchised by error or illegal voting is every bit as essential as ensuring access to the vote.
If those aren’t federal issues then nothing is.
So, a lot to unpack here
1- In Bush v Gore, SCOUTS identified very specific ways in which the Florida Supremes were violating equal protection. The Florida Supreme Court decision did not specify who in each precinct will review the ballots, and how the various degrees of ballot marks (dimpled chad, double hanging chad, triple hanging chad, etc.) will be interpreted. Each precinct was applying its own methodology. This was very clearly a disparate treatment.
However, just because the legislature gave voters different options for voting does not create disparate treatment. Otherwise, when government gives you the option to pay property taxes by check or credit card, a disparate treatment claim arises. Anyway, that argument has never been raised in trial courts, and therefore is not up for appellate review.
2- In Bush v Gore, Rehnquist, Scalia, and Thomas wrote another separate opinion. This was not a majority opinion, but it has persuasive effect. In this opinion, these justices emphasized that Federal government gives great deference to the state legislature’s decisions in picking electors. But when, AFTER an election, a state Supreme Court start legislating the minutiae of counting votes, (even if no disparate impact) this creates a constitutional issue. Why? Because the states would not be acting as Republics. In a Republic, courts don’t legislate the minutiae of counting votes.
The problem is: (1) this is not a binding opinion, and (2) here, the state courts are not legislating the minutiae of counting votes. They are not making new rules on interpreting chads, etc. They are mostly applying rules that existed BEFORE the election.
The PA case is close, but for a different reason. The PA Supreme Court ruled, BEFORE the election, that a cure of defective ballots is NOT prohibited. After that, the PA secretary of state, acting under duty delegated to it by the legislature, gave each precinct discretion in allowing ballot cures.
Now, Dershowitz thinks this is disparate treatment. I agree, but that is a different issue of law. Look again at the Rehnquist, Scalia, and Thomas opinion. They don’t talk about disparate treatment violating the “equal protection” clause. They talk about legislating from the bench violating the “Republican government” clause.
So … in conclusion: I don’t think a “Republican government” challenge exists in most (if any) of these State Supreme Court losses.
But there may be a “disparate treatment” challenge as to the PA ballots that were subject to cure. But I was told that those ballots are not enough to flip PA.
So I just don’t see a high likelihood of many of these failed state Supreme Court cases making it to SCOTUS. Remember, you don’t have a RIGHT to have your case heard by SCOTUS. Only about 5% of cases applying for SCOTUS review get to be reviewed. And the SCOTUS has already declined to review one defeat in the 11th Circuit Court of Appeals.
Again, let’s wait and see.
I agree that the GOP hates DJT. When he started running, they laughed and scoffed at him. There is plenty of footage of Graham, McConnell, Romney, even Cruz knocking DJT. And I’m not just talking about criticizing his policies. I am talking about outright contempt and ridicule.
If DJT was expecting a landslide victory, he was misinformed. His advisors should have told him that he had ruffled too many feathers. The Rats, of course. And the RINOs, and the party-apathetic deep state, and the Never Trumpers.
Personally, I wanted to see the two RINOs in GA senate runoff go down in defeat. But lots and lots of people on FR called me nasty names … and then, when DJT himself came out in support of them, I thought “ok … he knows a lot more than I do.”
Also, and to be blunt, I am reading a lot of court opinions and carefully reviewing a lot of the evidence, and I am beginning to think that some of these cases are weak in substance, not just in procedure. I don’t want to go into detail now, because I don’t want to share with every Tom, Dick, and Harry, my opinion as to the weakness of these cases … at least not until the issue has been resolved.
Sorry about the long and rambling post.