Making sense of Republican Party of Pennsylvania v. Degraffenreid


On Monday, the Supreme Court decided Republican Party of Pennsylvania v. Degraffenreid (formerly Boockvar) and Corman v. Pennsylvania Democratic Party. Both of these cases raised the same issue: can entities other than the state legislature (such as the state courts) modify the rules governing federal elections. The Court issued a one paragraph per curiam opinion that resolved both petitions.

The motions of Donald J. Trump for President, Inc. for leave to intervene as petitioner are dismissed as moot. The motions of Thomas J. Randolph, et al. for leave to intervene as respondents are dismissed as moot. The motion of Hon- est Elections Project for leave to file a brief as amicus curiae in No. 20–542 is granted. The motion of White House Watch Fund, et al. for leave to file a brief as amici curiae in No. 20–574 is granted. The petitions for writs of certiorari are denied.

Justice Thomas dissented from the denial of certiorari. Justice Alito wrote a separate dissent from denial of certiorari, which was joined by Justice Gorsuch.

Counting the votes here is tricky.

First, let's count the votes in the motion to intervene. We know a majority of the Court voted to deny Donald Trump's motion to intervene because that motion was moot. At this point, Trump's presidential campaign is over. There is no interest on which he could intervene. The denial here is unsurprising. But a majority of the Court did not state that the Republican Party of Pennsylvania's petition was moot. The Court does not explain why cert was denied. The motion to intervene could be moot, but the underlying petition could not be moot, for the reasons identified in the dissent. (For example, this issue is capable of repetition, yet evades review). Furthermore, we do not know if any Justices dissented from the denial of the motion to intervene. Justices are not required to indicate dissents from these sorts of unsigned, summary orders. For all we know, the three dissenters, plus one more, contended that Trump's intervention was not moot, but declined to note their dissent. At a minimum, five Justices denied the motion to intervene.

Second, let's count the votes with respect to the cert denial. Under the so-called Rule of 4, four Justices must vote to grant review in a case. In this case, we know that three Justices–Thomas, Alito, and Gorsuch–would have granted cert. That split tell us that six Justices voted to deny cert: Roberts, Breyer, Sotomayor, Kagan, Kavanaugh, and Barrett. But we do not know why any of those six members voted to deny cert. It's possible that one or two of those Justices agreed with arguments put forth in the dissents, but chose to deny cert for other reasons. In short, we know a majority of the Court thought Trump's motions to intervene were moot, but we do not know if a majority of the Court found the petitions were moot.

Third, why was Justice Kavanaugh not a fourth vote to grant certiorari? In October, he was a proponent of the independent state legislature doctrine. But now, he was MIA. Both dissents referenced the fact that four Justices voted to grant a stay on this issue in October. The Wall Street Journal questioned, "where did Justice Brett Kavanaugh wander off to, since he was the fourth vote in October?" What happened?

I have no reason to think Justice Kavanaugh changed his mind on the merits. Why, then, did he not vote to grant cert? Perhaps Justice Kavanaugh determined that the petitions were now moot. If so, he could have issued a statement respecting the denial of certiorari, similar to his concurrence in NYS Rifle & Pistol: this controversy is moot, but the Court should address this important issue in another case. But he didn't write separately.

Or, perhaps, Justice Kavanaugh thought it was not prudential to decide this issue now. The events of January 6 may have given him pause. But if not now, when? This issue is truly a ticking time bomb. In 2024, the Republican Presidential candidate will raise the issue, forcing the nine (or more) members of the Court to resolve this important question. Chief Justice Roberts is content to keep kicking the can down the road, knowing that each subsequent kick allows the issue to fester. Does Justice Kavanaugh agree?

Or, perhaps, Justice Kavanaugh was affected by criticism of his Wisconsin dissent. By some accounts, he mischaracterized Professor Richard Pildes's article. And I think Justice Kagan's dissent torched him on the "flipping" votes argument. And this argument looks even worse after the never-ending nonsense of Dominion machines "flipping" votes. Justice Kavanaugh probably did not want to line up with the pillow guy. For now, Justice Kavanaugh was silent.

Fourth, we have no idea where Justice Barrett is on this question. In October, Barrett recused from the Pennsylvania and North Carolina absentee ballot cases. She had recently joined the Court, and was not yet up to speed. Now, we still don't know where she is. A denial of cert does not in any way suggest her substantive views on the question presented. We will find out in 2024, or even sooner.

Update: Linda Greenhouse comments on Justice Kavanaugh and Barrett's silence in these cases:

Justice Kavanaugh withheld his vote on Monday, without explanation. Maybe he decided this was a propitious time to offer some cover for Chief Justice John Roberts, who has voted in nearly all the election cases this fall with the three remaining liberal justices.

Justice Barrett was also silent. During her confirmation hearing, Senate Democrats had pressed her to promise recusal from any election cases, given that President Donald Trump had said he needed a prompt replacement for Justice Ruth Bader Ginsburg so that he would have a majority of justices voting his way in any election disputes. Justice Barrett did not recuse herself from the Pennsylvania case. Perhaps her decision not to provide the fourth vote her dissenting colleagues needed was a kind of de facto recusal, in recognition that the optics of voting to hear a last-ditch Trump appeal would be awkward, to say the least.

NEXT: Testifying before Senate Judiciary Committee Hearing on Nomination of Merrick Garland to be Attorney General

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  1. So basically, prior to the vote certification, there was no standing, and now that Biden has been installed, the issue is moot.

    Screw these people.

    1. I don’t usually agree with you, but…

      The whole point of giving these jerks life tenure is so that they won’t sway with the political winds. It doesn’t seem to work.

      1. You probably agree with me more than you realize. At some point, once the Democrats are permanently entrenched in power, you’ll realize that it was solely the result of our experiment with “diversity.”

        Undo 55 years of mass third world immigration, and the Democrats could never win, at least not in their current form.

        1. Undo anti-democratic institutions like the electoral college and two senators per state, and Republicans could never win, at least not in their current form.

          1. Except that requires “undoing” the very founding of America.

            1. OK, here is the fundamental issue on which we disagree. You think that white conservatives are entitled to hold power in perpetuity as a matter of right. I don’t. This is a very different country than it was in 1789. You can celebrate that fact or bemoan it, but the country in which white conservatives ruled in perpetuity as a matter of right is gone, and it’s not coming back.

              Anti-democratic institutions allow your side to appear to have more popular support than it actually does, and to hold more power than you would otherwise have. But stop pretending you speak for a majority of the country. You don’t.

              1. White men built this country, and without white men as a majority, the country will fail. I agree it’s not coming back until America fails, and at that point, we’ll split up into multiple pieces. One of them will be a white ethnostate.

                Your “majority” includes tens of millions of 85 IQ mestizos who were dishonestly and corruptly forced onto the population. They’re not people that America ever agreed to take in as their fellow countrymen.

                1. White men built the US with cheap disposable slave labour, without black people it would have failed completely as a state.

                  1. Nonsense. Everything built by slavery was destroyed in the Civil War.

                    1. So America post-Civil War is no longer America as it was Originally Founded? Interesting thesis.

                    2. No. Anything built by slavery was largely in the pre-industrial South. The South had to be rebuilt from scratch during and after Reconstruction.

                    3. So, that’s yes, the original America that was Founded with slave labour was destroyed by the Civil War. Fortunately they had Jim Crow and the racist prison/slave system to keep the cheap labour coming for the purposes of rebuilding.

                    4. That’s some of the worst economics I’ve ever seen.

                    5. That’s ridiculous. It’s pretty hard to destroy a cotton field. The mansion isn’t really a capital asset.

                      The truth is slavery held the south back. Free markets in labor as in any other commodity market, reduces market inefficiencies and helps all resources to be used more effectively.

                    6. I’ve always thought that the availability of slave labor slowed industrialization in the South. It also enriched the planters, and gave them more political power than they would have had with a free labor market.

                    7. Infrastructure is not the same as wealth.

                      America as a whole spent about a century accumulating wealth nationwide by exploiting the bodies of black people, and calling ourselves exceptional while we did it.

                  2. Seems unbelievably unlikely.

                    1. You don’t think the early US was built on slave labor?

                      Look at our Founders. Look at how we paid our war debts.

                    2. Wait until he finds out how much of the world’s modern tech relies on slave labour, child labour, repressive exploitation and wholesale environmental destruction with all the knock-on suffering that entails.

                2. Didn’t used to see overt unapologetic racism until VC went to Reason.

                  1. Until VC was “redpilled”

                3. You do know Parler is back up and running? You probably would be happier joining your fellow Morlocks there.

              2. You’re free to propose Constitutional amendments to change things you do not like.

            2. Lots of diverse people immigrating wasn’t how America was founded?

              1. Oh, but those were European immigrants.

                1. Um, hang on, there were a certain number of ‘forced’ immigrants too, not from Europe, let’s not forget them.

                  1. Yes, and the people who brought them believed (correctly) that they were mentally inferior.

                    1. Yes, the people who brought them were mentally inferior, and morally abysmal.

                    2. Caucasoids have an average IQ of 100. Negroids have an average IQ of 75-85.

                    3. They had IQ tests back then, too?

                    4. Blacks fail everywhere they exist in the world. Why is that?

                    5. Whites fail everywhere they exist too. Everybody fails where everybody exists. It’s the human condition.

                    6. You’re an idiot.

                    7. Oh yeah? I’ve an IQ of sixty gazillion ,so there.

              2. No, it wasn’t. America was founded by English colonists. Germans and Irish followed 40-80 years later, but that was basically it until the 1880s, when Europeans from other parts of Europe started immigrating in large numbers. That was shut off for 41 years in 1924.

                Filling America with tens of millions of illiterate third worlders is a post-1965 idea. It’s not how America was founded.

                1. Most of the people coming from Europe were illiterate peasants escaping shithole countries, or illiterate criminals sent as indentured servants from shithole countries. Europe was a shithole for most of the people living there, and they were all illiterate. As for Russia – bozhemoi.

                  1. Yeah, there’s a big difference, however, between an illiterate peasant from the Ukraine or from Poland, and an illiterate peasant from Guatemala or Somalia.

                    1. Read the Bell Curve and Race Differences in Intelligence before you embarrass yourself any further.

                    2. Why would I want to read discredited racial theories? I rwealise they’re important to you since discredited racial theories were a vital part of the Founding Of America.

                    3. The Bell Curve used blacks in South Africa as an example of blacks that hadn’t experienced any discrimination.

                      It’s a very dumb book.

          2. Why would a Representative Republic want anything to do with democratic institutions? Thousands of years of history have shown mob rule ends badly.

            1. “Thousands of years of history” have shown no such thing; that’s a bullshit propaganda talking point by people who don’t believe the people are entitled to self governance. Please cite the specific history you are referring to.

              And why should the people take seriously claims by people who insult them by comparing them to a mob?

              1. there’s a difference between democracy and self-governance.

              1. Of course, whether we are a republic or a democracy depends on whether we are speaking Latin or Greek. Republic is Latin for democracy, and democracy is Greek for republic.

                Res – thing. Publica – people. So, the people’s thing
                Demos – people. Kratika – rule. So, rule by the people

            2. Because the representatives should be chosen democratically?

              Just a guess.

  2. I think I’d argue with characterizing this as “deciding” the cases. “Duck”, maybe. “Dodge”. “Evade”.

    But not “decide”.

  3. “There is no interest on which he could intervene. The denial here is unsurprising. … (For example, this issue is capable of repetition, yet evades review).”

    As Trump pointed out, he might run again in 2024. So the issue was just as capable of repetition in regards to him, as it was in regards to the Republican party.

    “Justices are not required to indicate dissents from these sorts of unsigned, summary orders.”

    Perhaps they should be.

    I suspect they do not want to take any case, any case whatsoever, that might end with them suggesting that Trump might have actually had a valid basis for challenging the election outcome. The events of January 6th made Trump radioactive from their perspective.

    As perhaps they were intended to.

    1. As perhaps they were intended to.

      Take your meds. It wasn’t antifa wearing Camp Auschwitz sweatshirts, no matter how much in love you are with claiming “false flag” every time RW nuts do something indefensible.

      1. “It wasn’t antifa wearing Camp Auschwitz sweatshirts”

        First, it was A sweatshirt. One guy.

        Second, [and this gets complicated but i am sure you can follow], anyone can buy and wear a sweatshirt.

        1. Ok. One guy.

          Interesting to know you’re in the “Antifa did it” crowd. Not surprising.

          1. Well, they do specialize in mostly peaceful attacks on government buildings in Portland and elsewhere.

            No group “did it”. Just a mob of unorganized Trump supporters and general rabble rousers, some of whom might have been leftists. No conspiracy, no insurrection.

            1. No group “did it”. Just a mob of unorganized Trump supporters and general rabble rousers, some of whom might have been leftists. No conspiracy, no insurrection.

              Not what the evidence shows, but never mind.

              1. It is exactly what the evidence shows, a few people who meant to try to enter/riot and a bunch of people who went along.

                1. I’d agree with that, but Bernard was disagreeing with “Just a mob of unorganized Trump supporters and general rabble rousers, some of whom might have been leftists.”

                  No, it’s pretty clear that it was mostly unorganized Trump supporters, but there was a tiny core of people who’d had some sort of plan.

                  1. Organized or not, Brett, they broke down barriers, smashed windows, attacked Capitol police, chanted “hang Mike Pence,” etc.

                    That some didn’t participate in advance planning doesn’t excuse their conduct.

                    Stop pretending they were just innocent tourists. When tourists see a mob breaking into a building they tend to go the other way, not join in.

                    “Mostly” Trump supporters? Because one guy was a sort of free-lance prortestor? Still clinging to the false flag argument, are you?

                    1. After being told all last year that standing next to a guy throwing Molotov cocktails and getting in the way of the police trying to stop him didn’t make you a rioter, I think I’m going to continue saying that the ones who were peaceful were just innocent tourists.

                      Isn’t that what we were being told all last year? That being at an event where violence is taking place doesn’t make YOU violent, unless you personally take part in the violence? Not even if the event has been violent every night for the last month?

                      How much less violent are you, if you don’t personally take part in the violence at an event nobody expected to turn violent?

                      I break the people down into 4 categories, basically.

                      1) By far the largest group, came to DC to protest peacefully, and that’s all they ever did. Never even got near the Capitol for the most part. Did nothing illegal at all.

                      2) Second largest group: Wandered into the Capitol after the barricades were down, and did tourist stuff there, probably weren’t even aware of the barricades having been torn down before they arrived. Technically broke the law, but unknowingly.

                      3) Third largest group: Idiots who didn’t come planning on violence, but let themselves be egged on into it. These are the people who helped tear down the barricades. Prosecute them to the fullest extent of the law, they should have known better.

                      4) Smallest group: Came to DC planning violence, and egged it on. Yeah, at least one left-wing professional agitator, also some clowns on the right. These are the guiltiest parties, without them everything would have been fine. They not only have to be prosecuted, they need to be executed, to see who might have been helping them.

                    2. Sorry, “investigated”, not executed. Darned spell check is more blood thirsty than me.

                    3. Your groups:

                      1. Fine. No problem. I don’t think they are being prosecuted, and of course they shouldn’t be.

                      2. Sorry, but while this group may not be the null set, it’s close. To call it the second largest group is delusional. They didn’t see the barricades torn down, didn’t hear the chants, didn’t see windows and doors smashed in? Give me a fucking break.

                      3. and 4. Agree with you.

            2. No group did it because AntiFa is just an idea.

    2. Unless pandemics become a lot more common, I don’t think this is capable of repetition.

      As to your speculative telepathy, that’s just finding a way to fit events to your narrative.

      1. It’s not the pandemic that’s capable of repetition, it’s the changes to voting procedures they used the pandemic as an excuse to impose.

        And that’s absolutely capable of repetition.

        1. Exactly. They got it away with it, now they have precedent to support it in the future.

          1. They got away with…counting legitimate votes. How dastardly.

            1. They weren’t “legitimate”.

              1. Really? You’d think that would have been easy to prove in court. Or anywhere.

                1. Not when the court denies standing so evidence cannot be introduced.

                2. Did the court eat the evidence too so that it vanished off the face of the earth and could not be seen anywhere ever again?

                  1. Social media did that pretty well.

                    1. Social media? Where for four years the Republican President of the United States was the most famous poster on Twitter? Or Facebook, whose number one news site was run by Ben Shaprio? Your evidence couldn’t even survive there?

        2. That’s far too speculative and presupposing pretext that’s not proven.

          1. Ahh, yes, typical liberal strategy. Propose a gun registration scheme and argue that any claim that it will be used to confiscate is “speculative,” then when the confiscation is proposed or actually happens, deny that you made the claim about “speculation” in the first place.

        3. “It’s not the pandemic that’s capable of repetition, it’s the changes to voting procedures they used the pandemic as an excuse to impose.”

          It has to be capable of repetition yet evading review. The case did not evade review. Although the President’s claims were mooted, the Republican Party of Pennsylvania has live claims. SCOTUS denied cert. How do you think it got to a cert denial in the first place if it evaded review? (The Republican Party and President Trump both intervened in the state court lawsuit, too. They lost but whatever.) They cold also go file a dec action tomorrow, to enjoin any counting of votes outside what you and Justice Thomas allege is the required timeline for counting votes.

          You know this already but there is more to the Pennsylvania legislature’s election law–that is, more that the “State . . . Legislature” of Pennsylvania has said about the “Times, Places and Manner of holding Elections”–than Act 77. Moreover the state constitution, which binds the legislature, also has something to say about Times, Places and Manner of holding Elections.

          1. I was pointing out that Trump and the Pennsylvania GOP were similarly situated, as Trump was perfectly capable of running for President again.

            1. That would make it even less likely to “evade review” since he can sue to enjoin the PA SC’s order from affecting future elections in which he might be a candidate.

              1. But could he sue to enjoin the PA supreme court from again changing election laws on it’s own say so? This particular court order isn’t the issue, after all. The issue is the whole idea that the court/executive branch are entitled to change election rules in contradiction to the law.

                1. “But could he sue to enjoin the PA supreme court from again changing election laws on it’s own say so?”

                  Yes. He can sue for declaratory judgment that extending the deadline for submitting ballots set by Acts 77 is unconstitutional. He (or his lawyers) kind of sort of already did that, albeit not very well, which is why he just got poured out. But he can go file another one, tomorrow.

                  “The issue is the whole idea that the court/executive branch are entitled to change election rules in contradiction to the law.”

                  You’re just assuming your conclusion. The issue is whether or not the court or executive branch did that at all. One of many reasons for SCOTUS to duck issues like this is that it has no special expertise in Pennsylvania law, and should defer to that Court on matters of state law. But setting that aside, even if SCOTUS imprudently took up the constitutional argument (that the Times, Place and Manner clause requires the legislature and only the legislature to decide such things), that still would not resolve the issue. The state legislature has no power to do anything that its own Constitution prohibits, and you have to look at everything the Legislature has ordered, not just one section of one statute.

                  1. Look, I have read at least the PA supreme court ruling on the absentee ballot deadline, and they absolutely did that.

                    They said the law was clear, that the legislature had the authority to enact it, and that it wasn’t in any way unconstitutional, and then they ordered it violated.

                    And, of course they denied it was unconstitutional, since the law had an anti-severance clause declaring that the entire act would be void if any part of it was declared unconstitutional. It was a considered legislative compromise, and they didn’t want any judicial mucking around with it, either the entire act stood, or things returned to the status quo ante.

                    I guess the legislature never guessed the courts would admit it was constitutional and order it violated anyway.

                    1. “They said the law was clear, that the legislature had the authority to enact it, and that it wasn’t in any way unconstitutional, and then they ordered it violated.”

                      This is an intentional misrepresentation of the holding. They held that the received-by deadline was constitutional and unambiguous. It held that separate provisions of the Election Code–ENACTED BY THE LEGISLATURE–granted courts the authority to provide relief from election-day timing deadlines. It also addressed whether the as-applied, strict interpretation of the received-by deadline violated a separate constitutional provision, resolving that balancing problem by reference to a separate legislative edict, 25 P.S. 3046. Your argument is that the received-by deadline trumps 25 P.S. 3046 and the Pennsylvania Constitution. Why do you think that?

                      “And, of course they denied it was unconstitutional, since the law had an anti-severance clause…”

                      They denied it was unconstitutional because no party argued the statute was unconstitutional as written. You don’t understand the difference between facial challenges to statutes, and as-applied challenges. Here is a great place for you to begin learning more about that.

  4. Perhaps Kavanaugh voted against cert knowing that there are 5 votes to insure the constitutionality of the states executive branch to alter the states election laws. ( 4 liberal votes plus roberts)

    1. You mean 5 liberal votes. Roberts is a liberal.

      1. what’s liberal about that worldview?

        progressive maybe, but not ‘supporting open discourse and hearing all perspectives of an argument’

    2. Out of curiosity, who do you consider to be the four liberal votes?

      1. Roberts, plus the 3 obvious ones. And yes, Roberts is a liberal. He hasn’t ruled in the conservatives’ favor on anything in at least the last two years.

  5. WTF?
    “By some accounts, he mischaracterized Professor Richard Pildes’s article”

    You are a law professor. You have read the article. Why the pussyfooting?

    1. Yes indeed. What does the law prof think?

  6. I think what the rationale here is, is to blame the pandemic claim extingent circumstances that will likely not be repeated and move on.

    Probably what they don’t want to do is decide the issue in the context of Trump’s election contest. As one President once said about a failed presidential candidate: “I supported him. He lost. He let us down. But he lost. So I never liked him much after that, because I don’t like losers.”

    1. I’m pretty sure that’s it. If it had been an ordinary candidate on the losing end, they might have taken the cases, to settle the question, because it really does need to be settled.

      But Trump is too radioactive for them to risk legitimizing his contesting the election, even if he was right.

      Perhaps especially if he was right.

      1. Trump’s response to losing will be neither boosted amongst his supporters nor enhanced amongst his detractors by this one case. Trump’s lie was that he won by a landslide. That is still Trump’s lie. You can’t ‘legitimise’ that by any fair and honest legal mechanism, you can only do it by choosing to pretend to believe him for entirely cynical purposes. Trump is clearly not radioactive to conservatives, except perhaps in a cargo-cult-worshipping-a leaky-atom-bomb kind of a way.

        1. Braggadocio was always his least appealing trait, so far as I was concerned. Trump clearly did NOT win by a landslide, he was never going to win by a landslide.

          I think a case can be made that if the election had been conducted entirely according to the laws on the books, he would have won, probably narrowly. And he would have won comfortably if, in addition to that, the media hadn’t been so relentless about running interference for Biden.

          But a landslide? Sheesh, why does he have to do that?

          1. It’s not braggadocio, it’s his literal claim. He’s not bragging. He’s asserting it as fact.

            And yes, if the Republicans had succesfully used rules and laws and appointees to relevant agencies and entirely legal shutting of voting centres to supress and discourage and discard votes, he’d have had more of a chance, nobody’s denying that!

            1. “It’s not braggadocio, it’s his literal claim. He’s not bragging. He’s asserting it as fact.”

              Bragging can be true, braggadocio consists of false self-aggrandizing claims. Like claiming you won by a landslide…

              1. Is false as in exaggerations of real events, not complete contradiction of reality.

                Saying you caught a fish thiiiiis big would fit. Unless you never went fishing at all, then it’s just lying.

              2. ‘false self-aggrandizing claims.’

                ‘Lying’ is shorter and more apt.

                1. Braggadocio is a subset of lying, yes.

          2. I don’t think a case can be made that under any plausible scenario Trump would have been re-elected. He only got elected in the first place because a whole lot of ducks lined up in just the right way. There’s about a dozen things that happened, that if any single one of them had happened differently, he would not have been elected.

            And I think part of the Supreme Court’s calculus is that even the conservatives that he himself appointed understand his sheer toxicity. It’s the functional equivalent of a Fourth Amendment case in which a dead baby was found in the trunk of someone’s car. No matter what other facts and legal arguments there may be, no judge is going to let a baby killer walk because a police officer screwed up the warrant. In fact, one of my law professors actually proposed a “dead baby in the trunk” rule, under which the courts would just own up to the fact that some results are unacceptable.

            1. “There’s about a dozen things that happened, that if any single one of them had happened differently, he would not have been elected.”

              That happens most elections.

              He lost by 44,000 votes in 3 states. Win those three states, its 269-269 and he wins in the House.

              No virus, he wins.

              1. Bob from Ohio : No virus, he wins.

                I won’t say that hypothetical isn’t true, but advise caution. Trump takes the oath of office and his approval ratings are underwater. Trump inherits a red-hot economy and his approval ratings don’t budge a tick upward. Trump presides over a healthcare catastrophe and economic collapse and they don’t budge a tick downward. They’re always the same.

                People were gonna vote they way they voted even if Trump cured cancer or shot random strangers on Fifth Avenue. Perhaps if the man made the slightest effort to act presidential – or at least like a mature adult – or perhaps vaguely human – then maybe there were minds to change.

                But if he was capable of THAT, he could have made his reaction to the pandemic into a political plus. Other leaders did…..

              2. No virus, he wins.

                On the contrary. The virus shows up and he makes a semi-intelligent response to it and he wins in a landslide.

                The virus only beat him because it showed, as if it needed more proof, that he’s ignorant and incompetent.

                1. What should Trump have realistically done differently in regards to the Virus that would’ve made a real, significant difference?

                  We had multiple countries affected by the virus. And almost all of them had severe problems. Those that didn’t had special circumstances which wouldn’t work in the US.

                  1. Armchair Lawyer : What should Trump have realistically done differently in regards to the Virus that would’ve made a real, significant difference?

                    Act like the pandemic didn’t bore him. Show a little human empathy for people’s suffering. Maintain a consistent message or position for more than five minutes straight. Not brag about his TV ratings. Forgo having so much fun at his press conferences, playing with his experts like a child her dolls. Never riff on possible or impossible treatments, absent a minute’s prepared study. Resist playground feuds and taunts, at least where covid is concerned. Not make elemental safety measures into culture war battlegrounds. Set a good example for safety measures, and demand the people working for you do the same.

                    Stuff like that would have certainly made a significant different in Trump’s small chance for being reelected. You see, over 50% of people thought he was unfit for the office he held. They thought this before he was tested by a brutal national emergency. Then they were proved right.

                    1. But doing all of that would have risked turning his own base against him.

                    2. “Act like….”

                      None of which would have significantly changed the scope and extent of the outbreak. Many other countries did worse than the US. Others did better. Others did a little better. But the entire list of “act like…” didn’t make a difference.

                      What did make a difference ultimately?

                      Operation Warp Speed. Remember “the experts” said there was no way there would be a vaccine by December 2020. But, wouldn’t you know it…there was.


                    3. AL, that wasn’t thanks to Operation Warp Speed, though.

                      Also you seem to not know what could means.

                    4. It’s fair to give Trump some vaccine credit because it happened on his watch. But you should also consider the timeline:

                      January 10: China releases genome of virus.

                      January 11: Scientists around the world immediately begin work on a vaccine.

                      January 14: Moderna begins development of its mRNA-based vaccine.

                      January 23: The Coalition for Epidemic Preparedness Innovations provides $12.5 million in seed money to three companies, including Moderna.

                      January 26: BioNTech begins work on its mRNA-based vaccine.

                      February 15: More than two dozen companies have announced that they are working on a COVID-19 vaccine.

                      March 26: Congress passes the CARES Act, which allots $9.5 billion for vaccine development.

                      April 16: HHS announces $483 million in funding for the Moderna vaccine.

                      April 29: Operation Warp Speed is announced in the press.

                  2. Not politicize mask-wearing. Not disregard the the threat because it was a “blue state problem.” Not hold big unmasked rallies. Get PPE manufactured. Not withdraw US health officials from China in 2019. Not minimize the danger consistently. Not lie and lie and lie, and talk like an idiot. Not have huge numbers of people coming in from Europe as a result of his ban wait in line for hours in crowded NY airports.

                    There are other things, but it’s really pointless to argue with Trump cultists like you.

              3. Ditto.

                No Virus, Trump would’ve won. With a booming economy, it easily would’ve shifted enough votes.

          3. Brett Bellmore : “I think a case can be made that if the election had been conducted entirely according to the laws on the books, he would have won”

            So make it. Why not entertain everyone with the attempt? You can start with with your largest and most frequently voiced complaint : The Pennsylvania Supreme Court ruling that allowed ballots to be counted after Election Day. That amounted to about 9500 votes and changed absolutely nothing.

            Your problem, Brett, is that your “case” is as much a fantasy as Trump’s landside. There aren’t enough mythic votes in your little grab bag of gripes to change anything. You think this form of snowflake-victimhood-whining appears more “reasonable” than Trump’s more grandiose lies, but surface appearance is its only advantage. As with Trump, the numbers don’t add up. It’s just another lie.

            We would also love to see you expound on “media interference”. In other recent comments, this has meant a snit over Trump’s flop of an “October Surprise” (your term). You keep claiming this was the media’s fault. I keep asking what facts weren’t fully reported. It would be nice to get an answer on that one day.

            1. Take out the votes of the semi-retarded blacks from Pittsburgh and Philadelphia and what were Pennsylvania’s numbers?

              1. “Take out the votes of the semi-retarded blacks from Pittsburgh and Philadelphia and what were Pennsylvania’s numbers?”

                If there anything left of the Volokh Conspiracy beyond

                (1) a bigoted, deluded, cranky right-wing following


                (2) the disaffected conservative law professors who cynically lather that deplorable audience?

            2. Your problem, Brett, is that your “case” is as much a fantasy as Trump’s landside. You think this form of snowflake-victimhood-whining appears more “reasonable” than Trump’s more grandiose lies, but surface appearance is its only advantage.

              This is Brett’s MO. Say just enough that he can come back later and claim he never said there was fraud, or that Biden didn’t really win.

              1. I assume, perhaps this is wrong of me, that people actually followed what was going on.

                Three states where a total of under 43K votes stood between Trump and a tie, and potentially winning the tie breaker vote in the House. Then there’s PA, if Trump had carried that, he could have lost any one of those three, and had an outright majority in the EC.

                All four of those states had questionable non-legislative alterations to election procedures. Drastic expansions of mail in voting, reduced signature matching standards, exclusion of election observers on questionable basis, stuff like that.

                It isn’t unreasonable to think Trump would have won the election if it had been by the books. Basically all those changes favored the Democrats, as you can see from HR 1, which proposes to make them permanent; Democrats would hardly propose THAT if they thought the changes hurt them.

                1. Yes, if the election had ignored constitutional rights to vote, and forced people to choose between risking death and voting, maybe the votes would have gone differently.

                  But we’re a better country than that, despite some folks who wish we weren’t.

                  1. None of the changes to election rules were in any way required by the Constitution. We didn’t even change election rules during the Spanish flu!

                    Look, if the grocery stores are open, and most people are back to work, you can damned well run a normal election. Implementing the Democratic party’s wish list for election law changes isn’t constitutionally mandated every time a new bug shows up.

                    Long before election day we knew Covid wasn’t bad enough to require drastic changes to election administration. Democrats made the changes anyway, because they’d wanted them regardless.

                    1. They were required by the state constitutions.
                      So found state courts.

                      That you’re making a dumb comparison between the franchise and putting food on the table does not change the fact that the duly appointed authorities weighed in and you’re wrong.

                    2. Watch Brett describe judicial review of election procedures as some kind of constitutional holocaust, and you just have to wonder: Where has he been previous years?

                      Doesn’t he know these fights occur every election, even in years where Trump doesn’t require an excuse for losing? Let’s look at 2016 – which I presume was a “legitimate” vote since Brett’s cult idol won:

                      One county in Arizona was sued because they cut primary polling places by 70%, resulting in one site per 21,000 voters. The county reached settlement with the plaintiffs. Colorado was sued over a ban on ballot selfies & lost. Florida was sued to extend voter registration because of Hurricane Matthew, as was North Carolina. Florida was also challenged over a law that allowed curing an absentee ballot with no signature, but prevented the same with a signature mismatch. Was this legally tenable? A federal judge wrote, “The answer is a resounding no”

                      The Pennsylvania GOP sued to overturn a law that prohibits poll watchers from crossing county lines. That law was upheld by a federal judge, while a Michigan ban on straight-ticket voting was struck down. Also rejected was the Kansas law requiring proof of citizenship to vote. This was a last piece of mischief from Kris Kobach before going on to spectacularly failure as head of Trump’s “voting fraud commission”

                      Dig up a website called the Federal Judiciary Center and you’ll find a survey of (479) case studies of emergency election litigation stretching back thru decades of (very legitimate) elections. It’s wonderous that Brett never noticed any of this before. Even without prompting by his handlers, you’d think he woulda….

                2. Three states where a total of under 43K votes stood between Trump and a tie, and potentially winning the tie breaker vote in the House. Then there’s PA, if Trump had carried that, he could have lost any one of those three, and had an outright majority in the EC.

                  All of which is an indictment of the EC.

                3. ‘If less people had voted Trump would have won’ is definitely the lesson I expect Republicans to take to heart.

        2. If you exclude the illegitimate votes of those who real Americans in 1965 never wanted as co-citizens in the first place, he won by a landslide.

          Limit voting to white men over age 30 who had 2 grandfathers who were Protestants born in the United States and see what the country’s politics would look like.

          1. Then why bother having elections. Why not just pass a rule that says that conservative white guys will hold power in perpetuity.

            And why should anyone give a damn about who your so-called “real Americans” wanted to share citizenship with?

            1. If you don’t think the people of a nation have the right to decide who immigrates, then you’re not worth having this discussion with.

              Good day.

      2. Yep. Between that and fear of antifa riots, we’ll never get the actual claims settled.

        Free minds, free markets, and rigged elections.

      3. But Trump is too radioactive for them to risk legitimizing his contesting the election, even if he was right.

        That. Plus the related zone of personal and professional dislike of Trump the man.

        1. The guy has the entire DOJ leadership beholding to him. Barr bailed him out on the Russia investigation. He had all of the resources that come with his office and he couldn’t even muster enough evidence to present to anyone, not even FOX or OANN, that showed there was anything but propaganda behind his so-called “stolen election.”

          “Even if he was right” … yeah… one of the most powerful people on the planet was easily hoodwinked by random, state-level republicans running local elections. If he really was right, that level of incompetence should disqualify him. But he wasn’t right. He was/is lying. As usual.

          1. Bailed him out? On what planet do you live on? The case was against Trump was so shitty Barr had no choice. He sat on Durham long enough that none of the meat of that could get out, and on just about every other issue, Barr opposed Trump.

            The lies people tell themselves to fit a narrative they want to believe; it still amazes me.

  7. My gut says that Roberts was able to convince some of the Justices to deny cert for prudential reasons. Roberts has to be concerned about the potential for court packing after the election results and the creation of the commission on judicial reform. Even granting cert would be trumpeted as Exhibit A on why court packing is necessary.

    But I don’t think the denial suggests how the Court would rule in the future. The issue squarely falls within the concurrence of Bush v. Gore. If this issue does come up in the future and the Court’s make up stays the same, I suspect there will be at least 5 votes adopting the concurrence.

    1. If the prospect of an enlarged Supreme Court disinclines the current Court to refrain from flattering birthers, Pizzagaters, Qnuts, ‘election fraud’ kooks, white Nationalists, downscale xenophobes, half-educated racists, militia cranks, and any other fragments of Trump’s base . . . waiting a bit for the Republicans to provoke Sen. Manchin might not be so bad.

        1. Getting stomped by your betters in the culture war has made you cranky, Don Nico. And it will never get better for you. You will spend the rest of your life complying with rules established by people like me.

          Have fun during the remainder of the not-over-but-settled culture war, clingers.

          I know I will.

          1. One thing you aren’t is anyone’s “betters”.

            1. The winners write the history books and so far you’re NOT on the winning side.

              1. It’s easy to win if you do one man one vote and bring in semi-retarded peasants.

            2. Your betters do not want your approval, support, or respect, I Callahan.

              But we will have your compliance, until you are replaced. Thank you for all of that.

              You can complain, but you will toe the line.

  8. “And this argument looks even worse after the never-ending nonsense of Dominion machines “flipping” votes.”

    Windham County, NH.

    CONCORD, NH — The Election Law Unit of the New Hampshire Attorney General’s Office has requested reams of information from the town of Windham in an attempt to find out why there was such a huge discrepancy between paper ballots optically-scanned on Election Day in November 2020 and wildly different totals after the ballots after a hand recount.

    Tip of the iceberg. It’s not nonsense.

    1. The tip of the iceberg! Dozens of votes changed in a recount in a small New Hampshire town. The four winning republican candidates picked up ~ 300 votes each, and the highest receiving democrat lost 100 votes. And not by Dominion-manufactured machines. What’s underneath the iceberg? Are you contending that Global Elections Systems Inc., before going out of business years ago, secretly modified its system to benefit future republican state representatives candidates? This goes right to the top!

      1. “Premier Election Solutions, formerly Diebold Election Systems, Inc. (DESI),[1] was a subsidiary of Diebold that makes and sells voting machines.

        In 2009, it was sold to competitor ES&S. In 2010, Dominion Voting Systems purchased the primary assets of Premier, including all intellectual property, software, firmware and hardware for Premier’s current and legacy optical scan, central scan, and touch screen voting systems, and all versions of the GEMS election management system from ES&S.”

        So, Dominion owns the GEMS system, stupid! 🙂

        It wasn’t dozens, it was hundreds, in a small county, and the amount “flipped” was remarkably consistent among the candidates. A pattern, so to speak, almost as if it was done programatically.

        1. No, Dominion owns AccuVote intellectual property, having acquired it in 2010 after the DOJ required the sale to avoid industry consolidation. But they did not manufacture the machines used to count the votes you’re complaining about, as those machines are not manufactured anywhere.

          Is your theory that Dominion purchased intellectual property in 2010, so that it could survive a statewide hand recount in New Hampshire in the 2016 election (showing no major discrepancies), just so it could secretly hand the 2020 election to Joe Biden, in a state he would have won even if there was not a single voting machine, by counting votes in a way that didn’t even affect the outcome? The theory is so insane you’d have to be stupid to believe it.

          A pattern “done programatically”? Or is it just as likely that this is a routine error where approximately 300 people’s votes for one of the four republicans, were accidentally not counted? You know, like the sort of thing that happens in every election involving millions of people? The fact that it was approximately 300 (which isn’t true across the board, it was +99 for one democrat and -20 or -30 for three democrats) tends to weaken your theory. If you were trying to rig an election, you wouldn’t just program 300, because the fraud would be easier to catch. A somewhat consistent error rate is what you would expect with normal (but systemic) errors, too. But it’s just the tip of the iceberg!

          What happens when they discover that it wasn’t a programmed error? What will you say, then?

          1. You know, you manufacture a lot of things that you state here, including what you propose I assert, and what really happened in Windham county. For example, it wasn’t “approximately 300 people’s votes for one of the four republicans, were accidentally not counted,” it was approximately 300 votes for each of the republicans were not counted.

            1. “…it was approximately 300 votes for each of the republicans were not counted.”

              You mean like when I fucking said:

              “The four winning republican candidates picked up ~ 300 votes each…”

              So now that you’ve had your opportunity to nitpick, when are you going to address the substance? What, precisely, is your conspiracy theory? That Dominion has been plotting for a decade to help four Republicans win elections in a small New Hampshire township by a slightly smaller margin than they would have won anyway? To what end?

          2. The issue with voting is what you can’t see. With a secret ballot, finding any problems at all is deliberately almost impossible. So when you find any problems at all, the question is quite simple, “what do you not see”. Republicans have been talking about vote security for decades now, and Democrats have been pretending vote fraud doesn’t exist for just as long. The attempts to ensure no Trump victory are getting in the way of bonafide attempts to find fraud, which in a country this large, I can guarantee exists.

            1. How is any attempt “to ensure no Trump victory” “getting in the way of bonafide attempts to find fraud” in this case? There is an investigation ongoing. People are trying to understand the discrepancy. The problem is not a lack of interest from either political branch in voter fraud (see here). The reality is that voter fraud is extremely rare. Primarily because there is little benefit for an individual to engage in voter fraud (since their vote has no chance of influencing the outcome) but massive penalties, including jail time. And in order for someone to engage in voter fraud on a level that has any chance of influencing an election, discovery of the crime approaches certainty.

              Nobody doubts that voter fraud happens. This example does not look like voter fraud at all. Again it’s an alleged crime with no theory. Someone programmed votes to not change the outcome of the election? For a fucking tiny township in New Hampshire? For fun?

  9. I think it’s relevant that Trump invoked strong dislike on the Supreme court, and this was likely payback. He spoke much as liberals do, demanding personal support. This had serious negative effect on his results.

    It’s important to separate our historic views of Trump the man and Trump the president. Trump the man pissed off everyone anywhere nearby. Trump the president was the best president since Lincoln. We didn’t know Trump the man. We knew Trump the president.

    1. “I think it’s relevant that Trump invoked strong dislike on the Supreme court, and this was likely payback. ”

      If that’s true, then SCOTUS is proving Trump is right about them!

      1. If that’s true, then SCOTUS is proving Trump is right about them!

        When you put people to a test, you need to know that they’re going to pass.

  10. SCOTUS got burned once before when it overturned parts of the voting rights act in 2013. State legislature immediately went out to restrict voting and the Court was blamed for giving them leeway to take these actions. I think there is now a reluctance on the Court to give too much authority to legislature on voting for fear they will do more to restrict voting. Especially since some legislatures are itching to do more to curtail voting rights. This will likely generate more lawsuits. Better to let this dog lay for now.

  11. I’d like to a resolution of these issues regarding federal elections: 1) can a state court set election rules based on the state constitution that conflict with a state statute and 2) is a state court’s interpretation of a state election statute determinative?

    1. I also wanted the chief justice to explain Art 1, Sec4, Clause 1 in light of the supremacy clause.

      Art 1, Sec4, Clause 1:
      “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof…”

      Art 6, clause 2:
      This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

      There doesn’t seems to be any wiggle room for the court to deny that the judges in PA usurped the power of the PA legislature.

      1. Of course there is wiggle room, go read the opinion. The PA legislature has said a lot about the “Times, Places and Manner of holding Elections” besides Act 77’s timeline. And the PA legislature has no power to say things that it is not authorized (by the state’s constitution) to say.

        1. The authorization comes from the US Constitution, anything in the Constitution or Laws of any State to the Contrary notwithstanding..

          1. The Constitution knew how to say only, you don’t get to read it into the text because you like the result.

          2. You’re missing the point. The Elections clause says the “Times, Places and Manner of holding Elections . . . shall be prescribed in each State by the Legislature…” So if the Legislature says: (1) Ballots must be submitted by 2:00pm and (2) Lower courts have the power to make equitable adjustments to this timeline, there’s no violation of the Elections Clause at all, since the “Legislature” has spoken. Moreover, if the state constitution says the state legislature has no power to disenfranchise people, any law purporting to disenfranchise its own citizens in a manner inconsistent with the state constitution, including through “Times, Place and Manner” restrictions, is not something the “Legislature” has done. State legislatures derive their power not from the US Constitution, but from their state constitutions. Any legislative act contrary to the state constitution is no act at all.

        2. The issue I have is that the justification for the court’s interference, changing the deadline from election day to several days afterwards was based on the vaguest of authority that elections should be “free and fair”. That seems to be insufficient authorization to change a black-letter and unquestionably reasonable law passed by the legislature. I do not understand how they can argue that having a deadline is so systematically unfair that they can rewrite law.

          1. It’s “free and equal” and the “vaguest of authority” is the Pennsylvania Constitution, at Article I, Section 5. The PA Legislature had also separately and broadly authorized PA’s courts to issue orders pertaining to elections to “carry out the intent” of that separate act.

            “I do not understand how they can argue that having a deadline is so systematically unfair that they can rewrite law.”

            Have you read the decision?

      2. The possible wiggle room in this case is the legislature approved that the state constitution takes precedence over statutes even in regulations of federal elections. Right now, I’m not persuaded by that argument, but it is not unreasonable.

        I am however right now persuaded that state courts have the last say on interpreting state statutes that regulate federal elections because someone has to be, and it can’t be the legislature itself when there are different plausible interpretations of the legislature’s supposed last say.

        1. I would agree that if there were some actual ambiguity in state legislative acts regarding elections, state courts ought to have last say. But how about when that is not the case? What to do when a court simply changes the date that ballots must be received?

          1. You overturn it, so long as the case is not close enough to put SCOTUS in the position of having to tell a state supreme court about its own state’s laws. That’s not what happened here, but it could, conceivably, in another case.

          2. I think you are arguing that federal courts have the power to overrule a state court’s holding that a state statute governing a federal election is ambiguous, but do not have the power to overrule a state court’s interpretation of an ambiguous statute. I’m not sure whether that could work, but it would be nice to resolve the issue.

  12. SCOTUS now stands for the Supreme Cowards of the United States. They probably tell themselves that they are acting in the interests of stability but their avoidance of their duties inevitably will have the opposite results.

  13. The issue was already addressed by the Court in 1916, 1920, 1922, and in three separate cases in 1932. I’m not sure why the Court would need to use its resources to examine a question that it has already adjudicated.

  14. The Supreme Court always leads us into crisis, including the Civil War. If Dred Scott had been decided under law (and not politics) that war would gave been avoided. Same with segragation with Plessy, with bussing, with abortion and with my favorite Court screw-up that will likely end the country, Griggs.

    1. Disparate impact will end the country, eh?

  15. “An election free from strong evidence of fraud is not alone sufficient for election confidence.”

    This is some nonsense right here.

  16. I wouldn’t be surprised if Kavanaugh did in fact change his mind on the merits of the Electors Clause challenge.

    That whole “sola legislatura” idea always seemed half-baked to me.

    Are election laws somehow enacted differently than all other laws? Do they still require the governor’s signature? What if the state legislature passes a law and the governor vetoes it? Is it still deemed to control how electors are selected? That cannot be true.

    Similarly, what if the legislature passes, and the governor signs, a blatantly unconstitutional law? For example, imagine if a state passes the “Turnabout Is Fair Play Act of 2022” which provides that the votes of white males for president shall only count as 3/5 of a vote. Can such a law be challenged in court? It would seem to be completely insane to say that it cannot.

    So that basically leaves you with interpreting “in such Manner as the Legislature thereof may direct” as being equivalent to “in accordance with that State’s law”, which both makes sense, and should be wholly uncontroversial.

  17. This is all very silly, as is the Elector’s Clause claim. There’s no need to take a moot case, when there’s every opportunity to decide such a claim when it matters. At least one of the election rules contested in Texas v Pennsylvania had been on the book for 4 years. The legislature could have contested it at any time in those 4 years. Similarly, the battle over ex-felon rights to vote in Florida has been going on for a couple of years now. At least one issue is whether the courts can declare the statute unconstitutional because it amounts to a poll tax. There’s plenty of opportunity to add an electors clause claim.

  18. “If the question is ‘are the Democrats stealing votes in Philadelphia’ my answer is ‘Is the Pope Catholic?’ It’s a time-honored tradition in big, Democrat-controlled cities like Chicago and my hometown, Philadelphia, to do precisely what they’re doing . . . They control polling places, they stop votes when their candidate’s behind, and then in wee hours of the morning, in the dark of night, the stealing starts.” Rod Blagojevich

    1. Your Dem hate-fiction updating stories from at best the 80s, and probably the 60s, isn’t evidence of much, except about you.

      1. My stories? I mean, I assume Rod B is saying this because Trump freed him from prison.

  19. “perhaps, Justice Kavanaugh thought it was not prudential to decide this issue now. ”

    It’s not going to be any more prudential later.

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