Category Archives: Courts

The Pace of Court Cases

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And the reasons for rejecting or dismissing cases.

Recall the kerfuffle over the mechanisms by which the 2020 elections, particularly for President were carried out. Recall, also, the plethora of election fraud-related cases that were brought in State and Federal courts. Recall, further, that the vast majority of those cases—all but one or two—were rejected by those same courts over standing, or “ripeness,” or other procedural and technical grounds and not on the merits of the cases. Even our Supreme Court ducked—twice—hearing cases strictly on a technical matter and not on any merit.

Now, we’re getting different court outcomes.

  • Michigan, where the State Court of Claims concluded that Democratic Secretary of State Jocelyn Benson’s instructions on signature verification for absentee ballots violated state law.
  • Wisconsin, the state Supreme Court handed down a significant ruling in December when the justices concluded that state and local election officials erred when they gave blanket permission allowing voters to declare themselves homebound and skip voter ID requirements in the 2020 elections.
  • Virginia, a judge in January approved a consent decree permanently banning the acceptance of ballots without postmarks after Election Day, concluding that instructions from the Virginia Department of Elections to the contrary in 2020 had violated state law.

This sort of delay—three to five months—isn’t actually all that unusual; litigation often takes considerable time, especially on matters where data collection, witness identification and testimony, evidence collection generally are the occupants of that time.

However.

An election, particularly a national election, has functional deadlines for certification and Electoral College voting, counting, and certification that are very much nearby on the calendar. Such deadlines require much more timely handling of litigation related to the election at hand.

Elections, too, have the evidence ready to hand—an Arizona county’s stalling efforts not withstanding. Witnesses are known and ready to testify, the data are clear and present in the form of post office mailing records, election officials’ collected paper and electronic ballots, computerized voting machine data. All of these have only to be collected and audited, witnesses deposed. That needn’t take three to five months to get started, and the cases in court needn’t take three to five months to adjudicate and get to verdicts.

We need legislation—the States need legislation, not the Federal government—that pushes the pace of election-related litigation. Procedural rules regarding this sort of litigation need to be adjusted to provide a preference for hearing the cases and for reducing opportunities for stalling delay by either the plaintiffs or the defendants.

We do, also, need a modicum of legislation at the Federal level—to adjust procedural rules to provide a preference for hearing election-related cases rather than (apparently) being spring-loaded to reject on this or that technical ground.

Such Federal legislation would violate our Constitution’s separation of powers? If the Federal courts, including the Supremes, want to get sticky about that, here’s what our Article III, Section 1 Constitution actually has to say on this matter:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Article III, Section 2 provides a more targeted alternative, and one that can be used to circle back to Section 1:

…the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The several States can take similar responsive measures under their own constitutions.

Opposition

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Republicans in the Senate put Progressive-Democrats on the record on a number of amendments to Party’s budget reconciliation move—itself a deliberate act to sideline any dissent—which Republicans offered during a Thursday afternoon through Friday morning vote-a-rama. Party’s budget reconciliation then was voted up strictly along party lines.

Here’s some of what the Senate’s Progressive-Democrats oppose. Notice that every one of these would have enhanced Americans’ national security, economy, and individual liberty had they had the support of even a single Progressive-Democrat.

  • 50-50 on a failed amendment to support the border wall
  • 50-50 on a failed amendment supporting the free exercise of religion
  • 50-50 on a failed amendment to oppose packing the Supreme Court
  • 50-50 on a failed amendment opposing stimulus checks for people in prison
  • 50-50 on a failed amendment opposing the Biden administration’s move to restrict oil and gas leasing on federal lands
  • 50-50 on a failed amendment opposing a federal carbon tax

A Trump Legal Legacy

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Brent Kendall had a piece in Sunday’s Wall Street Journal, Trump Appointees Poised to Influence Legal Outcomes for Decades to Come, that explored this item. It’s well worth the read.

One statement in particular caught my eye, though.

Republican and Democratic [judicial] appointees often embrace differing legal philosophies that lead to divergent results.

This is at the core of the problem. As our Constitution’s Article I, Section 1 makes clear, there is only one legitimate legal philosophy for judges and Justices. They’re sworn to uphold the Constitution, not some mythical document that better comports with what they want to uphold.

Thus, they must apply the Constitution and the statute(s) before them as they’re written, not as they wish they were written; not as “adjusted” to fit a judge’s personal view of what society needs, as articulated by Justice Ruth Bader Ginsburg and acted out by Chief Justice John Roberts; not Thurgood Marshall’s you do what you think is right and let the law catch up.

All of those…philosophies…are political decisions well outside the ken of the judiciary and solely within the scope of the political branches of government and of We the People, who hire and fire those political personages.

In Which the Supreme Court Gets One Right, Sort Of

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The Supreme Court has ruled, for now, that the Trump administration’s policy of not allowing census-counted illegal aliens to be included in States’ post-census Federal Congressional reapportionment decisions can stand.

Following its ruling earlier this month that allowed the Trump administration to remove illegal aliens from the 2020 Census count, the Supreme Court on December 28 threw out two lower court decisions that went the other way, that barred the government from eliminating that population from the process of allocating congressional seats and Electoral College votes that officially determine the presidency.

The two tossed cases were Trump v Useche and Trump v City of San Jose. Notice that these address two separate, albeit related, matters. One is counting illegal aliens during the census itself; the other is whether State populations of illegal aliens can be used in setting the seats each State is allocated in the Federal House of Representatives and from that each State’s Electoral College representation.

California Attorney General and Joe Biden’s wish for HHS Secretary Xavier Becerra (D) insists,

[a] complete, accurate census is about ensuring all our voices are heard and that our states get their share of resources to protect the health and well-being of all of our communities. We remain committed to the core principle that everyone counts.

This, too, addresses two separate matters. Becerra is right, of course, about one of those matters, just not in the way he thinks. All of our voices—the voices of all of us who are citizens of the United States and of the particular State in which we reside—should be heard. Our voices should not be drowned out, or even diluted, by the voices of illegal aliens. Illegal aliens are not citizens; they’re not entitled to Federal government representation, and they shouldn’t be allowed to water down the representation of us citizens.

The other matter is this. Illegal aliens not being excludable from the census itself has perhaps legitimate implications for Federal transfers to the States for Medicare and other welfare fundings. It may be that taxpayers shouldn’t be held liable for the upkeep of those who announce from the jump their disrespect for our laws by breaking into our nation. On the other hand, we have our Judeo-Christian obligation to help those less well off—including those illegal aliens who have come from far direr straits: the difference between stealing a loaf of bread because the thief can, and stealing the loaf to feed his family.

Of course, the liberal, Living Constitution Says What We Say It Says wing dissented. Justice Stephen Breyer’s dissent in Useche, joined by Justices Sonia Sotomayor and Elena Kagan, and carried forward into this dismissal centered here:

The plain meaning of the governing statutes, decades of historical practice, and uniform interpretations from all three branches of Government demonstrate that aliens without lawful status cannot be excluded from the decennial census solely on account of that status.

That dissent does not address the use of populations of illegal aliens in apportioning State representation, only whether the illegal aliens can be counted in the first place. The dissenters will get their chance to argue again, though: the Supremes rejected the lower courts’ rulings on technical grounds, not on the merits of the issue.

Be heads up.

The Supremes’ order can be read here.

Obfuscating Harm

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The Wall Street Journal has an opinion on the nature of Texas’ suit against four other States regarding their conduct of the 2020 Presidential election in their States.

This legal analysis will upset many readers….

The Editors’ analysis is itself flawed:

Can a state be harmed by the way other states conduct their elections?

and

This one [Texas’ suit] concerns election law in states other than Texas.

And many other, similar statements. These are attempts to change the subject that would make Saul Alinsky proud.

The case Paxton, et al., have brought to the Supreme Court is about the defendant four States’ violations of their laws, not about those laws themselves, and through those violations, those States’ violations of our Constitution. Of course, one State cannot be harmed by the way other States conduct their elections—unless those States conduct their elections in illegal ways. In that case, the harm is grave, indeed.

There’s this, too, regarding the harm the States of Texas, et al., suffered, as summarized by Hans von Spakovsky, writing in The Daily Signal:

Additionally, the one-person, one-vote principle “requires counting valid votes and not counting invalid votes.” This damaged Texas because in “the shared enterprise of the entire nation electing the president and vice president, equal protection violations in one state can and do adversely affect and diminish the weight of votes cast in states that lawfully abide by the election structure set forth in the Constitution.”

Thus, the question is whether a State can be harmed by another State’s disregard for the Constitution that binds them together and that other State’s violation(s) of its own election laws. Whether one State can be harmed by the way another State conducts its elections is a cynically offered strawman.

With regard to the remedy Texas is requesting, the press—not only the WSJ—has distorted that as well, claiming that Texas wants the elections in those States thrown back to those States’ legislatures. What Texas actually is asking is this, again as summarized by Spakovsky:

The state is asking for a declaratory judgement that the administration of the election by Pennsylvania, Georgia, Michigan, and Wisconsin violated the Constitution; that their Electoral College votes cannot be counted; and to order that these states “conduct a special election to appoint presidential electors.”
If the states have already appointed their presidential electors, Texas asks that their legislatures be directed “to appoint a new set of presidential electors in a manner that does not violate the Electors Clause and the Fourteenth Amendment, or to appoint no presidential electors at all.”

Of course, a special election or any other manner that does not violate the Electors Clause and the Fourteenth Amendment need not be done solely by any State’s legislature.

Regarding already completed certifications (another concern of the WSJ), if those certifications were of illegally achieved outcomes, there is nothing lost and everything gained by setting them aside. The inconvenience to some of the set-aside isn’t relevant.

One last point. The press is constantly claiming that these efforts are aimed at overturning the election results. This, too, is an Alinsky-esque distortion of impressive magnitude. The results of the election are what the people decided with our collective votes. These efforts—the Texas effort in particular—is about upholding the election results by removing the obstacles of those four States’ illegally conducted election processes. Until those obstacles are removed, we cannot know the people’s choice, we cannot know the election’s outcome.

In the event, the Supreme Court declined Friday night to hear Texas’ case.