Posted on 12/11/2020 2:17:34 PM PST by AndyJackson
Regarding the Texas lawsuit against PA,WI, MI and GA there has been much speculation that AJs Alito and Thomas will provide solid support, but Kavanaugh and Gorsuch may waiver.
Their opinions supporting denial of the stay of a lower court order blocking efforts to extend the deadline for mail in ballot returns in Wisconsin are very illuminating and show that they, in particular are steadfast patriots.
In the opinions supporting denial of a stay of the lower court order Gorsuch [joined by Kavanugh] makes his views clear. Here is what AJ Gorsuch wrote in part:
The Constitution provides that state legislatures—not federal judges, not state not state governors, not other state officials—bear primary responsibility for setting election rules. Art. I, §4, cl. 1. And the Constitution provides a second layer of protection too. If state rules need revision, Congress is free to alter them. Ibid. (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . ”). Nothing in our founding document contemplates the kind of judicial intervention that took place here, nor is there precedent for it in 230 years of this Court’s decisions.
Understandably so. Legislators can be held accountable by the people for the rules they write or fail to write; typically, judges cannot. Legislatures make policy and bring to bear the collective wisdom of the whole people when they do, while courts dispense the judgment of only a single person or a handful. Legislatures enjoy far greater resources for research and factfinding on questions of science and safety than usually can be mustered in litigation between discrete parties before a single judge. In reaching their decisions, legislators must compromise to achieve the broad social consensus necessary to enact new laws, something not easily replicated in courtrooms where typically one side must win and the other lose.
Our oath to uphold the Constitution is tested by hard times, not easy ones. And succumbing to the temptation to sidestep the usual constitutional rules is never costless. It does damage to faith in the written Constitution as law, to the power of the people to oversee their own government, and to the authority of legislatures, for the more we assume their duties the less incentive they have to discharge them. Last-minute changes to longstanding election rules risk other problems too, inviting confusion and chaos and eroding public confidence in electoral outcomes. No one doubts that conducting a national election amid a pandemic poses serious challenges. But none of that means individual judges may improvise with their own election rules in place of those the people’s representatives have adopted.
AJ Kavanaugh, having concurred in Gorsuch's opinion then continues adding his own views in a seperate concurrence where he writes, in part:
First, the District Court changed Wisconsin’s election rules too close to the election, in contravention of this Court’s precedents. This Court has repeatedly emphasized that federal courts ordinarily should not alter state election laws in the period close to an election—a principle often referred to as the Purcell principle
That important principle of judicial restraint not only prevents voter confusion but also prevents election administrator confusion—and thereby protects the State’s interest in running an orderly, efficient election and in giving citizens (including the losing candidates and their supporters) confidence in the fairness of the election. ...The principle also discourages last-minute litigation and instead encourages litigants to bring any substantial challenges to election rules ahead of time, in the ordinary litigation process.
This Court has consistently stated that the Constitution principally entrusts politically accountable state legislatures, not unelected federal judges, with the responsibility to address the health and safety of the people during the COVID–19 pandemic.
Third, the District Court did not sufficiently appreciate the significance of election deadlines. This Court has long recognized that a State’s reasonable deadlines for registering to vote, requesting absentee ballots, submitting absentee ballots, and voting in person generally raise no federal constitutional issues under the traditional Anderson-Burdick balancing test. ...To state the obvious, a State cannot conduct an election without deadlines. It follows that the right to vote is not substantially burdened by a requirement that voters “act in a timely fashion if they wish to express their views in the voting booth.”
For important reasons, most States, including Wisconsin, require absentee ballots to be received by election day, not just mailed by election day. Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election. And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter. Moreover, particularly in a Presidential election, counting all the votes quickly can help the State promptly resolve any disputes, address any need for recounts, and begin the process of canvassing and certifying the election results in an expeditious manner.
And the Kavanaugh conclude with this stinging foretelling of a future now past.
“[L]ate-arriving ballots open up one of the greatest risks of what might, in our era of hyperpolarized political parties and existential politics, destabilize the election result. If the apparent winner the morning after the election ends up losing due to late-arriving ballots, charges of a rigged election could explode.”
You cannot predict how the justices will vote on one case based on their vote on another case when the issues under consideration are totally different.
It should be a no brainer if the DNC terrorists didn’t rule the streets.
All the courts have no say in elections, there is one man that has much powerin this train wreck, Mike Pence. The only one who has “standing”.
This does give me hope they will do the right thing.
I don’t know. It must be very hard to be them, because either way they rule, I think things will blow up. I hope they just go for what is right, supporting the Constitution.
Let the chips fall where they may. The justices have to remember that their duty is to determine constitutionality. The results are beyond their control.
Only because our side have traditionally cowered in their homes and expected someone else to come along and do the dirty work for them.
Totally aside separate FR, many millions across the country are no longer willing to be so submissive.
What will happen? No one knows yet. Anything predicted is just speculation right now. Glad I don't live anywhere near a large city, though.
Gahhh! “Totally separate from FR”, not “Totally aside separate FR”.
It's the same case and the same issues.
At this point we have no choice but to meet violence with violence.
They are presuming that we will remain passive.
The sooner we convince them they are incorrect, the sooner it will end.
l8r
well said!
This case is only step one. If successful, then then at least 3 of the state legislatures have to vote for Trump or it’s all for nothing, the sc is being asked to put it on the legislatures to vote differently than the fraudulent outcome.
This reads like they are going to do their duty to the Constitution and not hide from it.
That was for one state only.
A states vs. states lawsuit is different and the issues are different.
It is important to understand in the Texas case that SCOTUS is not being asked to reverse an election. They are being asked to rule on equal protections and the Electors clause.
If they rule for Trump and Texas and all states intervening on the side of Texas, then the Defendant Electors will either not be seated or the individual Defendant state legislatures will take it up.
Long and short is this a whole different set of circumstances and jurisdiction for SCOTUS.
>the issues under consideration are totally different
Um, no, they are exactly the same, that only state legislatures can enact or change election law, not judges, governors or other state officials.
Having already made this ruling, I don’t see how the SC has any choice but to accept the Texas case and rule in their favor.
It's a different case, DNC vs. Wisconsin legislature, and different issues. Wisconsin is not suing another state claiming the way they run their elections disenfranchise Wisconsin voters.
They're entirely different. In DNC vs. Wisconsin State Legislature, one state is not suing another state claiming that the way they run their elections disenfranchised the plaintiffs voters.
Well, we’ll see, won’t we?
I think it will be 5-4 to hear the Texas case. Hopefully the court will enjoin the elector college from meeting on Monday.
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