Election 2020

Why Rep. Mike Kelly's Challenge to Pennsylvania's Election Results Is Going Nowhere (UPDATE: It Went Nowhere)

Pennsylvania's response to Rep. Kelly's effort to invalidate Pennsylvania's election results.

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Last week, Representative Mike Kelly and several other members of Congress from Pennsylvania filed an application for injunctive relief with Associate Justice Samuel Alito, asking the Supreme Court to reverse a state supreme court ruling upholding the constitutionality of changes Pennsylvania made to its election laws in 2019. Justice Alito asked the Commonwealth of Pennsylvania to file a response, which was submitted this morning. (A few amicus briefs, available here, have also been filed.) Pennsylvania's filing is quite well done, and credibly explains why there is no basis for Supreme Court involvement in this case.

Rep. Kelly's suit claims that legislative changes to Pennsylvania's election laws in 2019 that, among other things, expanded absentee voting violated the U.S. Constitution because they violated the state constitution. Rep. Kelly's suit further claims that the plaintiff's constitutional rights were violated because the Pennsylvania Supreme Court ruled against them and concluded the claims were precluded by the doctrine of laches (basically, that the plaintiffs waited too long to file their challenges). The questions presented by the Kelly filing are as follows:

  1. Do the Elections and Electors Clauses of the United States Constitution permit Pennsylvania to violate its state constitution's restrictions on its lawmaking power when enacting legislation for the conduct of federal elections?
  2. Do the First and Fourteenth Amendments to the U.S. Constitution permit the dismissal of Petitioners' claims with prejudice, on the basis of laches, where doing so foreclosed any opportunity for Petitioners to seek retrospective and prospective relief for ongoing constitutional violations?

Today's responsive filing on behalf of Pennsylvania walks through all of the jurisdictional and other problems with Rep. Kelly's claims. The introduction is worth the read to get a sense of all the issues, and how they cut against the plaintiffs. As appellate practitioner Raffi Melkonian tweeted, it almost reads like a law school issue-spotting exam, "but one that is too easy."

With that in mind, here's the introductory portion to the responsive brief:

Petitioners ask this Court to undertake one of the most dramatic, disruptive invocations of judicial power in the history of the Republic. No court has ever issued an order nullifying a governor's certification of presidential election results. And for good reason: "Once the door is opened to judicial invalidation of presidential election results, it will be awfully hard to close that door again. . . . The loss of public trust in our constitutional order resulting from the exercise of this kind of judicial power would be incalculable." Order, Wis. Voters All. v. Wis. Elections Comm'n, No. 2020AP1930-OA, at 3 (Wis. Dec. 4, 2020) (Hagedorn, J., concurring).

In seeking such unprecedented relief, Petitioners might be expected to present claims of the utmost constitutional gravity. Instead, the pair of claims they advance are fundamentally frivolous. Neither claim was pressed or passed upon below. Neither claim implicates a circuit split. Both claims are mired in procedural and jurisdictional defects that preclude this Court's review. The first question—which seeks to raise Elections and Electors Clause challenges to Act 77—is not actually presented by this case. And the second question—which argues that the Pennsylvania Supreme Court violated the First and Fourteenth Amendments in its application of laches—asks this Court to constitutionalize huge swaths of state procedural law without any credible basis in constitutional principles or this Court's precedents.

Even if Petitioners could surmount these obstacles, they would still need to justify the relief they seek. This first-of-its-kind injunction raises major constitutional questions. Yet Petitioners address none of them. They do not explain how a remedy premised on massive disenfranchisement would accord with the Due Process Clause, which requires the counting of votes cast in reasonable reliance on existing election rules as implemented and described by state officials. Nor do they seek to square their position with the separation of powers, the Twelfth Amendment, or basic principles of federalism—all of which foreclose the injunctive relief that Petitioners seek here.

These failings also explain why equity stands as an insuperable obstacle to Petitioners' application. "Democracy depends on counting all lawful votes promptly and finally, not setting them aside without weighty proof. The public must have confidence that our Government honors and respects their votes." Donald J. Trump for President, Inc. v. Pennsylvania, No. 20-3371, 2020 WL 7012522, at *9 (3d Cir. Nov. 27, 2020). But Petitioners would throw all that to the wind. After waiting over a year to challenge Act 77, and engaging in procedural gamesmanship along the way, they come to this Court with unclean hands and ask it to disenfranchise an entire state. They make that request without any acknowledgment of the staggering upheaval, turmoil, and acrimony it would unleash. In issuing equitable relief, this Court rightly seeks to avoid inflaming social disorder. So to say that the public interest militates against Petitioners would be a grave understatement. Their suit is nothing less than an affront to constitutional democracy. It should meet a swift and decisive end.

To my mind, the biggest problem with this suit is the lack of a real federal question. Whatever one thinks of the state law questions, the attempts to make a federal case out of these state law claims is quite strained, and the existence of independent and sufficient state law grounds should insulate the Pennsylvania Supreme Court's decision from review.

It is also worth noting that the underlying theory of Rep. Kelly's suit is in tension with the theory underlying Texas Attorney General Paxton's latest suit and other recent election suits. Whereas others have claimed that state legislatures have near-plenary authority to determine the manner of selecting presidential electors–and therefore election law changes made by non-legislative actors are suspect–Rep. Kelly claims the state legislature is constrained by the state constitution, but not as interpreted by state courts. So whereas other suits complain about state election administrators or state courts altering state election law without legislative approval, this suit claims that the constitutional problem is that Pennsylvania state courts failed to overturn changes to state election law made by the legislature. It is almost as if the theories are not based on principled consideration of the underlying constitutional questions, but are instead constructed to ensure the desired outcome.

UPDATE: Tuesday afternoon, as predicted, the Supreme Court denied Rep. Kelly's application for injunctive relief without recorded dissent.

 

NEXT: Texas Is Attempting to Sue Georgia, Michigan, Pennsylvania, and Wisconsin Over the 2020 Election

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  1. “Even if Petitioners could surmount these obstacles, they would still need to justify the relief they seek.”

    This is what I keep saying: The real problem Trump faces, is that every time a judge looks at the only available remedy, they blink.

    In light of that, it hardly matters how good a case he’s got, he automatically loses.

    1. Only available remedy?

      In nearly every attempt to rein in or resist Trump depredations over the last four years we were told over and over that the only constitutional remedy was to vote them out next elections.

      But that apparently is not good enough for the Trump royalists.

      Republicans have a “right to rule.” Any government by Democrats is illegitimate. If you start from that premise everything Trump and the Republicans have done recently makes sense.

      1. This essentially is it. Frum called it- if “conservatives” can’t win democratically, they won’t give up conservatism but rather abandon democracy.

        1. The important part is that conservatives lose. Because they deserve it. They have lost the culture war. They will continue to get stomped by their betters in that culture war. They lose at the polls. They get their dumb asses handed to them in court. They get painted into increasingly smaller, more desolate corners of our nation. Everyone else — their children, legitimate educational institutions, their betters — disrespects, scorns, and mocks them.

          In America, the bigots don’t win. That’s part of what makes America great.

      2. Right.

        This is the fundamental attitude of Republicans. They are the rightful ruling party, and anything that helps them stay in power is legitimate.

      3. Positions were reversed four years ago. How conveniently forgotten!

        1. Were they? I don’t remember dozens of Clinton lawsuits challenging the results at this point…

        2. This attitude isn’t simple partisan hypocrisy, like the typical reversals on the national debt for instance, it’s actually a fundamental part of the current conservative movement in terms of rhetoric and approaches to law and governance. They’re the Real American Moral Majority who control this Judeo-Christian Nation, and any pretensions otherwise.

          Republicans go around talking about “Real Americans” like there is some group of not Fake Americans out there who aren’t entitled to be served by government.

          Republicans get on the Senate Floor and say one group of Americans shouldn’t be able to have representation in Congress because they aren’t from “a well-rounded working-class state.”

          Republicans lose state-wide offices but still control the legislature due to gerrymandering and then say: “If you took Madison and Milwaukee out of the state election formula, we would have a clear majority. We would have all five constitutional officers and we would probably have many more seats in the Legislature.” As if those places don’t count.

          Republicans lied to the American people about deserving a voice in the selection of a SCOTUS Justice in 2016 and then decided their voices didn’t matter in 2020.

          And while we’re on the courts, Republicans invented a judicial philosophy called originalism and made sweeping claims that it is the only legitimate judicial philosophy. It also just so happens that this philosophy would prohibit most Democratic policy goals while enabling most Republican ones.

          And perhaps most importantly, when they realize that majority of people unhappy with their party, they simply justify their power by saying “we aren’t a democracy” (conveniently ignoring all the small-d democratic aspects of the system).

          1. ***”and any pretensions otherwise are wrong”

    2. No, no. They also do not have evidence or a good argument.

      “U.S. District Court Judge Matthew Brann wrote in his order that Trump had asked the court to disenfranchise almost 7 million voters.

      ‘One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption,’ Brann wrote, so much that the court would have no option but to stop the certification even though it would impact so many people. ‘That has not happened.'”

      https://apnews.com/article/judge-throws-out-trump-suit-pennsylvania-87eaf4df86d5f6ccc343c3385c9ba86c

      This same pattern has been repeated some 45 or 46 times now. How many times do we need to teach you this lesson, old man?

      1. Recent litigation indicates Republicans, conservatives, and clingers are largely impervious to education and reason. The more we stomp them and reduce them to laughingstocks, the more they sue and the dumber they get.

    3. No. They look at the evidence, which is too weak to survive pas the preliminary stage and dismiss the case. The also comment that the proposed remedy is nuts. No judge has looked at the case, said there is compelling evidence, and then dismissed it.

    4. “every time a judge looks at the only available remedy, they blink. ”

      As they should of course. Judges should always blink at such a direct affront on democracy.

    5. If you don’t have a good remedy, you actually don’t have a good case at all.

    6. The judges mostly say, if you care to read their opinions, that such a remedy would require extraordinary proof. And follow up that there appears to be no proof at all.

      So the problem is not just the remedy, it’s also the facts. And, as noted in the OP, the law.

      Other than that, you’re golden.

      1. Don’t forget the sanctions motions, requests for fees, and the disciplinary actions.

  2. I think there already has been a loss of public trust.

    1. Much bluster, and threats,
      but come twentieth next month
      clingers will comply.

    2. Sometimes it’s those who have lost their trust that are to blame.

    3. And you can lay that at the feet of Trump and his allies, including the vast majority of Republican elected officials.

      What they are doing is detestable.

      1. No, what ALL politicians do is detestable. Hillary was abominably recalcitrant four years ago. Democrats would have been abominably recalcitrant if the votes had been a little more in Trump’s favor.

        You guys are just as wilfully blind as the Trumpistas.

        1. “Hillary was abominably recalcitrant four years ago.”

          She conceded the morning after the election.

        2. Tell us how many lawsuits Hillary filed in 2016.

          Tell us how many times Hillary told the electorate that the whole system is rigged from top to bottom?

          Tell us when Obama ordered his GSA to begin the transition process.

          Tell us about when Hillary supporters donned walmart ar 15’s and walmart body armor and mobbed election officials private homes. Or when they shouted to ‘stop the count!’ in some places, and ‘count the votes!’ in other places.

          Yeah, ‘both sides’ this thing. Go ahead and make your case.

          1. He’ll make it as good as Powell and Wood.

        3. Hillary was abominably recalcitrant four years ago.

          You mean when she conceded on Election Night?

          And she didn’t go around filing idiotic lawsuit after idiotic lawsuit about vote fraud, or try to get state legislatures to overthrow the vote, or raise hundreds of millions by BS’ing the rubes.

          So no. No equivalency at all. Not even close. You’ve got a couple of cherry-picked quotes. We’ve got a mountain of misconduct, generally endorsed by Republicans.

          It doesn’t work.

          1. Let them squirm and dodge. Let them lie and cheat. Let them mutter and sputter. What matters is that they will lose, then be replaced.

  3. “Whatever one thinks of the state law questions, the attempts to make a federal case out of these state law claims is quite strained, and the existence of independent and sufficient state law grounds should insulate the Pennsylvania Supreme Court’s decision from review.”

    The 2000 Florida supreme court salutes your reasoning here!

  4. There is no way to Court is going to grant cert on this case, but those are some good questions to which I think the people deserve answers given the proper case/controversy.

    1. To be good questions they should be made in good faith, these are not. Kelly voted for the laws he’s now challenging and then put this forward when he and his cult leader lost under them.

      1. “Kelly voted for the laws he’s now challenging”

        That is a lie, as Kelly never served in the PA General Assembly.

  5. The real question you have to ask is why Republicans hate democracy. They clearly have no evidence so the answer is to ask to disenfranchise voters anyhow?

    I’m sure some cultists that frequent here can justify it somehow but an actual patriotic American definitely wouldn’t.

    Can you imagine Clinton in 2016 filing lawsuits to disenfranchise millions of votes? People would shriek and rightfully so.

    Jackass and his followers need to accept the loss and stop being so butthurt already.

    1. Why is it the people who want to do nothing about a possibly rigged election seem to hate democracy….? Could you imagine what the media would do if it were a Democrat who looks like they lost because of a ton of questionable things happening in red states?

      1. 45 courtroom losses. 2 recounts in Georgia. Trump lost. He has lost so much, you are getting sick of losing.

      2. It only ‘looks like they lost because of a ton of questionable things’ to Trump cultists because this is how cultists think. No non-cultist is even remotely convinced by the ‘arguments’ and ‘evidence.’

        It’s really quite pathetic. If you’re going to go all in on a bonkers uber-conspiracy theory at least do so in an instance where there’s a remotely inexplicable thing that needs explaining. By Trump’s own frequent admissions he was outspent, faced a hostile media environment as well as an unprecedented pandemic situation, had election conditions unfavorable to him and his party (mail voting), etc., and then, lo and behold, the guy who *barely* won last time lost this time…There’s nothing remarkable about this at all to anyone who isn’t a devoted member of the cult of Trump and thinks, like he does, that he could never, ever lose in an election unless it was rigged.

        1. You don’t get to be a Trump supporter — or a conservative — with good judgment, reliance on reason, strong character, adequate education, sensible conduct, or a preference for modernity and reality.

    2. The real question is why Democrats hate conducting elections lawfully.

      1. The argument that this election was not lawfully conducted has been, at best, poorly to buffoonishly made, rejected by court after court, judge after judge whether Democrat, ‘Mexican,’ GOP or even Trump appointee ( I guess they’re all in on the conspiracy, right?).

        The question then is quite naturally, why do so many Republicans still have such ardent faith in it? It’s clear that many if not most Republicans *need* this argument to be correct in a visceral way (this is especially an interesting question since the election turned out quite well for the GOP given forecasting, the Senate, which will block most of what President Biden wants, against predictions, stayed GOP [I guess that was all part of the masterful conspiracy too, right?]). So many Republicans are dying on Mount Silly all for one thing: Donald Trump as the President. It’s like it’s the only value or principle they seem to have…

        1. Yes, court after court has rejected the idea that courts aren’t entitled to order laws violated. Color me surprised, the Florida Supreme court thought they were entitled to do what they were doing back in 2000, until the federal Court slapped them down, too.

          Look, I went into this election fully expecting Trump to lose, and lose by a bigger margin than happened. And I really doubt it was fraud, rather than a better ground game and the effects of 4 years of hostile media coverage, that gave Biden the win. I think we might have seen a bit more fraud this year than the usual (non-zero!) amount, but not enough to produce this margin.

          But it really IS an important matter of principle whether we’re entitled to have election laws followed or not. Whether courts are super-legislatures, or not. Whether laws are just, you know, suggestions public officials can ignore if they have what they think a good reason, or the orders with teeth that those of us outside government experience them as.

          I really, really, REALLY do not like it when state AGs enter into collusive litigation so that they can be subjected to consent decrees “forcing” them to do things they wanted to do, but couldn’t because of some law they’d opposed. And that happened in more than one state.

          I don’t like it when a state supreme court decides to order part of a law violated on vague grounds, and then ignores an anti-severance clause to keep the rest of the law in effect though the law said that it had to be void as a whole if any part was not upheld.

          I like the rule of law. This has been a very, very bad year for the rule of law, and not just in election administration.

          Do we have election laws, or election suggestions? In 2000, the Court said laws. This year, they’re keeping mum. That severely annoys me.

          1. “I like the rule of law. This has been a very, very bad year for the rule of law, and not just in election administration.”

            If you actually liked the rule of law, you would be condemning these suits as affronts to that rule. Pleadings that state claims for relief and adhere to Rule 11 are part of the rule of law. Laches is part of the rule of law. Standing is part of the rule of law. Federalism is part of the rule of law. Crafting a remedy that doesn’t eliminate someone’s fundamental right to vote is part of the rule of law.

            If you really cared, you would be condemning all of this. But you aren’t so apparently you don’t.

          2. Guys, Brett isn’t a completely biased partisan who is coming up with one after another after-the-fact justifications for installing his guy as dictator. He’s just a Rule of Law enthusiast!

            Tell us, Brett, what are your feelings on the protecting the rule of law when it comes to the emoluments clause of the constitution, elected officials abusing their office to enrich themselves and obstruct lawful investigations, making false statements to the FBI, perjury under oath, conspiracy to defraud the US government by purposefully hobbling the postal service, paying off porn stars and letting your attorney take the fall, and Hatch Act violations every other month or so for 4 years?

            1. This is the Rule of Law enthusiast who thinks Trump should be allowed to get away with tax evasion and who knows what else, whatever the evidence.

          3. “Color me surprised, the Florida Supreme court thought they were entitled to do what they were doing back in 2000, until the federal Court slapped them down, too.”

            Are you this dishonest or ignorant? Federal courts have been slapping down Trump suits this year as fast and as much as state courts (and notice the plural there, marking a difference from 2000).

            I mean, answer this before I waste time going forward with what appears to be a dishonest or ignorant argument.

          4. Brett : “I like the rule of law”

            Let’s make two big assumptions for the purpose of argument:

            First, your screed is sincere. This is doubtful as De Oppresso Liber points out. You’ve been perfectly happy to defend trampling the law as long as it served your day-glo orange deity. But, never mind.

            Second, that the handful of election law changes you rail against were abusive, and worth so much indignation.

            So what? Let’s say you – Brett – could snap your fingers and do anyway with all the votes covered by your pretty little speech. Biden would still have won; Trump would still have lost. You rage, rage rage against the Pennsylvania extension on post-marked ballots. Eliminate every damn one and Biden still wins the state comfortably. You do know this, right?

            1. “Second, that the handful of election law changes you rail against were abusive, and worth so much indignation.”

              They weren’t election law changes. They weren’t changes because they weren’t done by the legislature, the only entity here with the right to change the law.

              They were election law violations, which is inherently abusive, and contrary to the rule of law.

              “Eliminate every damn one and Biden still wins the state comfortably. You do know this, right?”

              Setting aside that the deadline for accepting absentee ballots wasn’t the only law the PA supreme court ordered violated, sure, I know that. YOU would know I know that, if you’d read what I wrote above.

              It’s IRRELEVANT if following the law wouldn’t have changed the outcome. Not following the law was still “illegal”. That mattering is what the rule of law is about, isn’t it?

              1. File 50 more lawsuits, with the rest of the anti-social, bigoted rubes.

              2. They were election law violations,

                By definition, they were not.

      2. The real answer is “They don’t”.

        My better half has, since the election, tried to convince me that it is better to reach out to Trumpistas and try to calmly convince them with logic, facts, and kind words. She believes that, once the facts are explained to Republicans, they will abandon these inane, unproven allegations and stand up for our country and the representative democracy it founded.

        Then I showed her these election threads. I showed her how little actual facts matter to those who claim the election was rife with voter fraud, even in a forum dedicated to the law. I showed her the 1-48 lawsuit record, the statements of those who actually oversaw the election, and I showed her the ludicriousness of some of the allegations.

        She agrees with me now. It is useless to try and use facts and logic to convince the Trumistas here and elsewhere. They’d rather abandon reality and our democracy in favor of the lies of a conman and having their party win. So, congrats, I guess. You’ve made an impact.

      3. Brett,

        For the zillionth time, that you don’t like how the election was conducted (which translates to “You don’t like it that Trump lost) doesn’t mean it was unlawful.

        This has been explained to you countless times. Get over it.

        1. No, what makes it unlawful is the bit where they failed to follow the law.

          1. …as you interpret it with zero legal training.

          2. Are you like selectively illiterate? We’ve been over this. The courts followed the law; they looked at the constitution and the law and the executive action and made findings.

            They justified their findings in opinions.

            This is how the law works in America. It is how the law has worked in America for ages. You have had many, many people explain this to you, and yet you keep coming back to it.

            It’s like you’re a broken computer.

            1. Brett explained to me last month during the Houston drive-in vote dispute that the statute passed by the Texas legislature was a law, and all the reasons that the suit had no merit were simply “doctrines” apparently expendable at will.

            2. “Are you like selectively illiterate? We’ve been over this. The courts followed the law; they looked at the constitution and the law and the executive action and made findings.”

              Are you selectively gullible? That’s HOW courts order laws violated, by ‘making findings’. They don’t issue opinions saying, “Bwah ha ha! We’re ordering people to act criminally, so there!” They find excuses.

              They found the law constitutional. They found it unambiguous. They found the law within the authority of the legislature to enact. That completely exhausted the possible justifications they could have for not following it.

              Then they ordered that it not be followed.

              1. You call them excuses, because you don’t like them.

                And because you don’t like them, you have decided they are illegitimate. For everyone.

                And thus so is the election.

                And that kinda justifies any right-wing violence against the illegitimate government.

                Just don’t write any manifestos.

              2. They found the law constitutional.

                False.

                1. It’s false in every way. The plaintiffs didn’t challenge its facial constitutionality, so the court could not make any finding about its facial constitutionality. The plaintiffs raised an as-applied challenge to the law, and the court ruled in their favor.

  6. “Pennsylvania’s filing is quite well done”

    Professor Adler
    recognizes good lawcraft
    but Cruz may join fray

  7. Hypothetical

    New state North Montana legislature immediately prior to 2024 election enacts law: White males over the age of 25 married to persons of the opposite sex are entitled to two votes for president and senate and house candidates. Suits by non qualifying residents rejected by Supreme Court of North Montana, laches, no violation of State Constitution, no evidentiary showing that election results were changed by the alleged due process violations.

    Appeals filed to US Supreme Court alleging US Constitutional violations.

    What saith you?

    1. I think a competent political party and their lawyers would have been following the progress of the legislation, and five seconds after the Governor signed it, file a request for a TRO and Permanent Injunction in Federal court making Equal Protection and One Man – One Vote claims. Easy peasy. No need to wait ’til after the election and no need to go through state court.

      1. Exactly. They waited to see how the results turned out and then objected. That’s quite fishy.

    2. Everyone agrees that Senate and House members are popularly elected, so equal protection fully applies.

      For President, state legislatures don’t have to use popular elections. If they do, Bush v. Gore says equal protection applies. But what if they don’t call what they do a popular election? Can they have a more restrictive franchise and refer to the body of people who determine which slate of electors gets appointed as a “presidential elector selection commission” or some other term that’s understood to mean a narrow group of specifically designated people, not everybody?

      They might be able to do that.

      1. As long as they don’t invidiously discriminate in the makeup of this hypothetical commission, I would think it would be constitutional. Obviously if they say, “Only white people can be on this commission,” that’s a different issue.

    3. On your second point, I think the answer is yes. A state can have a deadline for filing objections to the voting process and then enforce that deadline. If somebody objects after that deadline, it can say they’ve filed their objection too late, even if they would have had a good case had they filed earlier.

      The law has filing deadlines and statutes of limitations and repose all over the place. People have gotten executed because they filed a challenge to their execution after the deadline and the court said sorry, too late, can’t hear your challenge now. There’s even more at stake in a capital case than there is here.

  8. I would think there is a basic problem with the plaintiff’s claims on the merits.

    Setting aside the Pennsylvania Supreme Court’s authority to construe the Pennsylvania state constitution, and setting the fact the specific conditions for getting absentee ballots could reasonably be construed as a floor to absentee ballot rights rather the exclusive conditions (i.e. the Pennsylvania Supreme Court’s reading is reasonable), if the state legislature has the exclusive authority to set the terms for appointing electors, as is claimed as the basis for making this a federal comstitutional matter, why should the state constitution be able to constrain them?

    1. One reason would be that the legislature only exists by virtue of the state constitution.

      1. LawTalkingGuy, when you use that kind of construction, it keeps things clearer if you make it explicit that reference to a constitution is a metaphor for action by the sovereign People. Any constitution is a decree from a sovereign. The sovereign does the actual creating. Thus, “The legislature exists only by decree of the People.” Put that way, the common confusion that a constitution constrains the People is more easily avoided.

  9. Another problem with this suit, and pretty much all of these election suits, is that they are premised on a mistaken notion that states have legitimate power to make rules and pass laws which obstruct voters during elections. A federal law may be needed to clarify that that is a misconception, and correct it.

    Voting is a sovereign power owned by the People, meaning neither the federal government, nor any state, has legitimate authority to obstruct its exercise. On the contrary, all governments, and all courts, owe a duty to the sovereign to protect and facilitate the exercise of the voting power, and to do so on behalf of the interests of the People collectively, not at the behest of particular candidates for office.

    No candidate can have a legal claim on the sovereign’s imprimatur. The candidates and their fates must be the subjects of elections, not the masters of them.

    In the instance of this election and its challengers, the courts do seem to have responded consistent with these principles, which the People should approve.

    1. The difficulty with this sort of argument is that there don’t have to be any popular elections for president at all. The state legislature could appoint the state’s electors itself if it wanted. Or it could make their appointment the task of a select commission, or even the outcome of some out-of-state event occurring that day, such as the winner of a particular football game, the performance of the stock market, or the popular vote of the country as a whole, rather than the state’s general voters.

      I think this fact means that it can come up rules for presidential voting and courts can’t microsctutinize them. The legislature, not the people, really is the sovereign here.

      The legislature can’t make only white men eligible to vote. But it can impose things like deadlines.

      I think the courts can give states some leeway to make allowances for emergencies. They shouldn’t federalize or constitutionalize state presidential election law one way or the other, neither making every irregularity or intercounty difference a constitutional violation, as republican plaintiffs have repeatedly contended, nor imposing what judges think are fair election rules, as democratic plaintiffs have repeatedly called for.

  10. That the Republican rubes genuinely believed they had a chance in this case makes this result all the sweeter.

    Gullible dopes and bigots are among my favorite litigation opponents.

  11. Petitioners ask this Court to undertake one of the most dramatic, disruptive invocations of judicial power in the history of the Republic. No court has ever issued an order nullifying a governor’s certification of presidential election results. And for good reason: “Once the door is opened to judicial invalidation of presidential election results, it will be awfully hard to close that door again. . . . The loss of public trust in our constitutional order resulting from the exercise of this kind of judicial power would be incalculable.” Order, Wis. Voters All. v. Wis. Elections Comm’n, No. 2020AP1930-OA, at 3 (Wis. Dec. 4, 2020) (Hagedorn, J., concurring).

    Public confidence in the system is already gone. But even if it were not, preserving that confidence at the cost of throwing away the system’s actual integrity is not only exactly the wrong set of priorities, it also can’t work. Behold the Streisand Effect writ large.

    In seeking such unprecedented relief, Petitioners might be expected to present claims of the utmost constitutional gravity. Instead, the pair of claims they advance are fundamentally frivolous.

    So the auditability, and thus integrity, of an election is “frivolous”?

    Neither claim was pressed or passed upon below.

    The improper brush-off plaintiffs got from both the trial court and the PA Supreme Court are the first things it’s your job to overturn. If the case isn’t ripe then GVR!

    If this cop-out is SCOTUS’ last word on the challenges, then Trump will be forced to call up the army and cross the Rubicon. And we’ll need him to do just that, because SCOTUS will have turned us into a banana republic. I welcome our new Generalissimo Trump and I’m not joking.

    1. Guys like you and the Volokh Conspirators deserve each other. Open wider, clingers.

    2. So the auditability, and thus integrity, of an election is “frivolous”?

      Whatever that means, it has nothing to do with this suit. This suit is about whether VBM is allowed in Pennsylvania.

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