Time to Step Back from the Brink

By Andrew C. McCarthy

Friday, December 11, 2020

 

‘This is the big one.” That is how President Trump on Wednesday described Texas attorney general Ken Paxton’s Hail Mary lawsuit against four states that have certified Joe Biden as the winner of the 2020 presidential election. The president was tweeting an announcement that he would be “INTERVENING” in the suit.

 

Technically, he was asking the Supreme Court to permit him to join the suit. In the end, as we’ve predicted, there was nothing for him to join. Friday evening, the Supreme Court summarily denied Texas’s motion to file its complaint. Reportedly, two justices, Clarence Thomas and Samuel Alito, dissented. They did not contend there was any merit to the suit; they adhered to their longstanding view that the Court must accept cases when states invoke the Court’s original jurisdiction.

 

There was no rule requiring the Supreme Court to decide Texas’s motion within a specific time. There is, however, a significant timetable imposed by Congress for (1) the resolution of election disputes at the state level, (2) the meeting of the Electoral College, and (3) the convening of a joint session at which Congress counts the votes. As I explained on Friday, because these dates are prescribed under Congress’s plenary constitutional authority, the Supreme Court had no power to ignore or delay them. The Court itself recognized this fact 20 years ago in deciding Bush v. Gore — which it did on the safe-harbor day because further delay would not have been permissible.

 

On Friday evening, the Court ruled that Texas lacked standing to posit its claims. For that reason, among others, I had described those claims as “frivolous” in my previous column. That was upsetting to some readers, despite my assertions that some of the voting irregularities Texas complained about are anything but frivolous. As I’ve detailed (see, e.g., here, here and here) some serious, credible reports of shenanigans have been raised, the “kraken” and other dross notwithstanding. Those matters need to be addressed.

 

The problem is that a federal lawsuit by Texas was not a viable vehicle for doing that. It is not my intention to belabor the multiple fatal weaknesses of Texas’s claims. What I want to focus on is the fact that 18 other states with Republican attorneys general sought to join Texas’s gambit. That is to say, 19 states that identify as conservative now take the position that states should be able to sue other states for the latter’s application of their own laws to their own citizens.

 

What this argument implies, whether the states making it realize it or not, is that even if Missouri wants to apply its own, stricter voter-identification standards, California should be allowed to file a complaint against Missouri in the Supreme Court. After all, the uber-progressive Golden State’s experts will say a strict-identification requirement disproportionately discourages qualified minority voters, which depresses Democratic Party turnout, effectively inflating the value of Republican votes to the detriment of Californians, who voted overwhelmingly for the Democratic candidate.

 

You can see where this goes.

 

Remember how up in arms Republicans from these 19 states used to be over the effort by Democrats, as soon as they took control of the House, to “federalize” national elections? Democrats wanted Washington to dictate to red states that there should be no registration deadlines, no identification laws, no restrictions on voting by felons, strict limitations on how the rolls were purged of ineligible voters, and so on.

 

Yet, less than two years later, we’re in such crazy times that Republicans proposed to have the Supreme Court federalize elections through lawsuits brought by red states against blue states and — or did they figure their stunt wouldn’t lead to this? — blue states against red states.

 

It is a lamebrain idea. Fortunately, it had no chance of happening because, under Chief Justice John Roberts, not with a ten-foot pole would the Supreme Court touch a case that involves governmental processes that are inherently political — i.e., consigned by the Constitution and tradition to the political branches of government that are accountable to voters.

 

Occasionally, this default position is maddening. The justices end up avoiding some issues they should decide, and too narrowly deciding others. Still, putting aside the chief justice’s jitters over the Court’s reputation for nonpartisanship, the Court’s posture is driven by the admirable principle that a self-determining people should govern itself through its politically accountable elected officials — not the unaccountable judiciary.

 

The Court made this clear last year in Rucho v. Common Cause, a case in which voters and activist groups from each party — Democrats in North Carolina, Republicans in Maryland — complained about the politicized drawing of districts. As Justice Scalia had explained 15 years earlier in his Veith v. Jubelirer concurrence, “gerrymandering,” the better-known term for this practice, was minted in 1812 — an amalgam of the name of then-Massachusetts Governor Elbridge Gerry and a salamander, the vivid image evoked by an election district Gerry had drawn for blatant partisan advantage. Districting is a quintessential political function, one that defies workable standards of justiciability.

 

While acknowledging Chief Justice John Marshall’s time-honored Marbury v. Madison proclamation that “it is emphatically the province and duty of the judicial department to say what the law is,” Scalia also seemed mindful of the equally well-known but more often ignored wisdom of Clint Eastwood: “A man’s got to know his limitations.”

 

So do courts. “Sometimes,” Scalia wrote, “the law is that the judicial department has no business entertaining the claim of unlawfulness — because the question is entrusted to one of the political branches or involves no judicially enforceable rights.” Applying this principle, Chief Justice Roberts in Rucho observed that judicial intrusion into district-drawing by legislatures would mark “an unprecedented expansion of judicial power” — and “not into just any area of controversy, but into one of the most intensely partisan aspects of American political life.”

 

Guess what? In terms of partisan politics, presidential elections are gerrymandering times a hundred. All the more reason to oppose what Roberts, in the redistricting context, described as “the effect of the unelected and politically unaccountable branch of the Federal Government assuming such an extraordinary and unprecedented role.”

 

Choosing a president is a political process left, at the federal level, to Congress. With due respect to the president, then, “the big one” was never going to be a Supreme Court case. It will be a legislative vote: the one Congress will take on January 6.

 

Texas and the 18 other red states pleaded with the judiciary to do their heavy lifting for them. Why should the Supreme Court have done that? Why shouldn’t its answer have been, “Hey, senators and representatives of Texas and all the rest of you elected delegations from Republican-leaning states: If you don’t think the votes of 20 million people should count, why don’t you object to them yourselves, in Congress?”

 

If Texas Republicans want the votes of other states stricken because those states failed to follow the letter of their legislatures’ election laws, let them stand up and object — and in so doing explain why Texas’s own electoral votes should still be counted, even though their own governor unilaterally changed election law.

 

If congressional Republicans are adamant that the votes of the people of Pennsylvania, Michigan, Wisconsin, and Georgia are illegitimate, let them stand up and object . . . and see if they ever win another election in those states again.

 

Let Republicans try to explain to the country why what they propose to do to states that vote for a Democratic candidate won’t result in Democrats disenfranchising states that vote for a Republican candidate.

 

With President Trump refusing to accept defeat and his core supporters stoked by hysterical claims that the election has been stolen — as opposed to righteous concerns that election integrity needs shoring up — Republicans are walking a razor’s edge. They do not want to court the wrath of Trump supporters, so they are supporting the unsupportable; besides the 18 states, well over 100 GOP House members have now expressed support for Texas’s gambit. They may calculate that this is a cost-free gesture, but it is not: It eggs on the president’s tirades and intensifies his supporters’ “Stop the Steal” zeal.

 

With the Court declining to entertain the Texas lawsuit, however, and the Electoral College voting on Monday, what then?

 

Are Republicans ready for what they are teeing up on January 6? Have they thought this through? Are they ready to have the Republican Party identified with the disenfranchisement of millions of Americans? Are they ready for a new kind of “United” States in which we invalidate each other’s votes? In which we roll the dice on how states will coexist once they start trying to disenfranchise each other?

 

After the Electoral College votes, there will be no more pleading with courts to take the explosive actions. After that, we’re down to plain old self-government by accountable politics. Here’s hoping that’s when we step back from the brink.