Tag Archives: government

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.

Labels

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Much is being made of President Joe Biden’s (D) refusal to address the situation at our Mexico border, with its burgeoning illegal alien flow into our nation, as a crisis. Much is being made of DHS Secretary Alejandro Mayorkas’ parallel overt rejection of the term “crisis” as a reference to that situation.

White House Press Secretary Jen Psaki has said that the administration isn’t in the business of “labeling” and that the Biden administration doesn’t take immigration advice from the Trump administration. That last is just a bit of empty-headed snark that Biden spouted as he speaks with Psaki’s mouth, for all that it provides a window into the nature of Biden’s inability to deal with what he has wrought at our border over the months since his election, as Mexico’s drug cartels and coyotes and folks from around the world act on his campaign promises of open borders once he’s in office.

On the larger matter, though, Biden—through Psaki—is right, to a point. Labels by themselves can be pretty meaningless, and they can be misleading.

However, properly done, they can be useful shorthand for referring to complex matters that are being handled or that need to be handled. Properly done, labels can serve to briefly identify the nature of the complex matter and thereby guide development of concrete, actionable solutions.

On the other hand, a problem cannot be attacked and resolved if it cannot be identified and understood.

A situation that is “No Big Deal” wants an entirely different response from a situation that is a crisis.

An influx of illegal aliens that is merely a “challenge” needs only local law enforcement involvement, with maybe a touch of Federal assistance, and some humane detention until the illegal aliens can be properly deported.

An influx of illegal aliens, though (and that influx is just the illegal aliens who actually are caught), that overwhelms not only local law enforcement but Federal agencies responsible for enforcing our borders—all of them—and enforcing our immigration laws; an influx that overwhelms our detention facilities, to the point that children become “housed” in the cages Biden inherited from ex-President Barack Obama (D) and currently is using; an influx that overwhelms our border facilities to the point that Wuhan Virus testing facilities are overwhelmed so that most of the illegal aliens who are actually caught and detained go untested and unquarantined—that influx is a crisis.

That’s the failing—a critical failing—of the Biden administration. It cannot label the situation as the crisis that it is.

And so it cannot understand the problem at our southern border.

Or it refuses to try to understand, which would be worse.

An Early Model

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The Georgia Senate has passed, and sent to the Georgia House, election reform legislation that could be a model for other States to follow—while, say I, encouraging—requiring, really—the Federal government to butt out.

Some highlights:

  • eliminate no-excuse absentee voting and
  • limit mail-in ballots to individuals who qualify based on specific criteria
    • people who are physically disabled
    • are over 65 years old
    • are eligible as a military or overseas voter
    • have a religious holiday around election day
    • work in elections
    • somehow need to be outside their voting precinct during the early voting period and election day
  • eliminate no-excuse absentee voting
  • require voter identification to request an absentee ballot
  • require Georgia to participate in a nongovernmental multi-state voter registration system to cross-check the eligibility of voters
  • allow mobile voting units to be used only to replace current brick-and-mortar voting facilities, not supplement them
  • set up a telephone hotline to receive complaints and reports regarding voter intimidation and election fraud, and require the State’s Attorney General to review them within three days

Couple Problems

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…with the New Jersey Middlesex Borough schools assistant superintendent response to a parent’s objections to the district’s refusal to reopen its schools for in-person, and socializing, teaching and learning.

Following repeated virtual learning complaints from a New Jersey parent, a school official fired back with an email shaming that mom.
“We know that parents and students are not following the same CDC guidelines that you continue to share with us that detail the importance of social distancing and mask wearing,” assistant superintendent of Middlesex Borough schools Paul Rafalowski wrote, according to a Feb 11 email obtained by NJ Advance Media. “Case in point, we were provided a number of photos that illustrate the precise reason our school community remains in Phase 1 (virtual).”

A fair enough beef, were the response accurate.

However.

The first problem is that school district’s management is not acting in accordance with the science. That science strongly indicates that it’s safe for the kids to be in school—safer, in fact, than keeping them home and asocial—and safe for the teachers and school staff, who are not at risk of the kids spreading the Wuhan Virus to teachers and staff (not to each other).

The second problem was pointed out by one of the parents responding to the assistant superintendent’s shameful response. Middlesex Borough parent Roger Sanchez regarding the photos that Rafalowski published along with his email:

The point is a government body should never be allowed to document the lives of private citizens and their children.

Too Far

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Senator Marco Rubio (R, FL) has reintroduced his Terror Intelligence Improvement Act, his bill to allow Government to block suspected terrorists from obtaining firearms. This bill, far from improving anything, is a long step back from our rights under our Constitution. As Dana Loesch summarized it in her newsletter (behind a paywall after this month; subscribe now for a discount on her subscription price),

The bill would also provide more authority for law enforcement agencies to go after suspected terrorists, while safeguarding law-abiding citizens’ Second Amendment and due process rights.

But, as Loesch goes on to point out, that’s internally contradictory. It’s simply not possible to restrict American citizens’ rights while protecting those same American citizens’ rights. A suspect is just that—a suspect, and so still innocent, regardless of suspicion.

Then, however, Loesch makes her own mistake.

If lawmakers want to stop suspected terrorists placed on a watch list from buying firearms they need to indict them.
I have no problem with this.

I do have a problem with that. All a prosecutor has done with an indictment is convince a secret group of men and women that he has probable enough cause to hale the indictee—possibly an infamous ham sandwich—into criminal court for trial.

The indictee still is innocent; he hasn’t been proven otherwise in that criminal court.

It’s true enough that we do restrict innocent men—we lock them up; we make them wear ankle bracelets; we make them pay a significant something of value to be released, under restrictive conditions, from jail pending trial; and so on.

But those restrictions are done in open court where the prosecutor must convince the judge that his proposed restrictions are warranted, and he must do so in the face of the defendant’s right to answer the proposed restrictions.

Simple indictment isn’t enough. If the suspected terrorist must be denied his 2nd Amendment rights (in the present context), let the prosecutor show in open court that his suspicion is well enough founded that his suspect should be locked up.

As a practical matter, too, that’s the only way to deny such a suspect firearms—outside of jail, there simply are too many means of access to firearms, legal or not.

Beyond that, there’s another, better, way to protect us from terrorists, whether those persons are armed or not. That is for Government to get out of the way of the first responders to any situation—us citizens who happen to be already on scene when the action goes down—carrying our own firearms.