More On The Roberts' Strategy--If That's What It Is
My presentation in Is The CJ Roberts Plan Working? has received some vigorous pushback in the comments. I've also pushed back vigorously. What I'll do here is elaborate a bit on the issues involved and also paste in the comments below.
Here's the nub of what I wrote yesterday about the "Roberts Strategy"--an admittedly speculative notion:
Back at the beginning of March I wrote a post that examined an idea that Shipwreckedcrew had put forward. The basic idea was that, in declining to involve the SCOTUS in legal disputes over the 2020 presidential election Roberts was pursuing an actual strategy--not just abdicating the SCOTUS' responsibility to uphold the Constitution.
Let me elaborate on that idea just a bit, to give Roberts the benefit of the doubt. There's no question that the SCOTUS could have stepped in --the Texas case in which numerous additional states joined would have been, IMO, perfect. From that standpoint the reasons given by the SCOTUS for sidestepping the case were unconvincing and harmed the prestige of the court by calling its judicial integrity into question. After all, what constitutional issue could be more fundamental and more important than one that called into question our entire electoral process? I discussed this aspect in the earlier post: Arizona Election Law Case In SCOTUS .
On the other hand , while the SCOTUS--in contrast to the executive and legislative branches--is supposed to be above politics, it simply is no longer possible for the Court to disregard political considerations--if that ever was possible. That is all the more true in that politics in America have become utterly toxic from a constitutional standpoint. The country is sharply divided, with the current regime narrowly controlling both the White House and Congress impugning fundamental concepts of the American order. What is the SCOTUS to do--plunge forward, or ...
Encourage the state legislatures to act by exercising their constitutional authority to regulate elections? That would return elections to regulation by the political branches of state governments, where the US Constitution placed the authority in the first place.The idea is that the putative Roberts strategy would support state legislatures taking charge of their own affairs --rather than the SCOTUS arrogating that authority to itself. In future, then, the SCOTUS would largely butt out of election law cases--the effect being to neuter much of the electoral lawfare we currently see in the federal courts. Voters at the state level would be able to express their views on their own states' election laws and their own courts at the ballot box. That HOPEFULLY is the significance of the SCOTUS--having previously declined to get involved in more sweeping election cases--now taking on a much more pointed case involving the swing state of Arizona.
That is not an argument for ignoring election law. What it is is an argument for accepting cases on a very narrow basis--when state law on its face violates some constitutional principle, not based on speculative concepts of disparate impact, such as we're seeing more and more. Those issues were not raised in the TX case that the SCOTUS sidestepped, but they are very much front and center in the AZ case--from a Dem electoral strategy standpoint the AZ case is a potential dagger pointed at the heart of their strategy.
As you'll see when you get to the comments pasted in below, I make the argument that it wasn't the SCOTUS' responsibility to save the GOP. Because let's face it--Trump did what he could to win reelection. The election was sabotaged not just by the Dems but by the GOP. We've seen that in state after state, during the post election squabbling. We're at the point now that the GOPers who sabotaged Trump--governors, legislators, AGs, SecStates--are now scrambling to fix their standing with the voters. Because they now realize that their strategy failed. They thought voters would be duped by the fraud, and accept a false loss by Trump. Instead, voters realize that the fix was in.
The justices at the SCOTUS aren't entirely stupid, nor are they entirely without political views. Some, especially Roberts himself, may have desired a Trump loss. That's as may be. The question is, was it the responsibility of the SCOTUS to rescue officials in GOP run states who failed live up to their own responsibilities? Arguably it was the greater responsibility of the SCOTUS to wait for the right case to try to put US election law back on a sounder constitutional basis. Also arguably--because I can't know this--they may have felt that the AZ case that was heading their way would provide that opportunity in a better way than the TX case would.
Now, here's an excerpt from an article today by John and Andy Schlafly--Election Audits Confound Never-Trumpers . In the first part of the article they make a strong case for the utter fecklessness--not to say perfidy--of the GOPe at the state level. The SCOTUS justices would have had to be fools not to have seen this, immersed as they had been in last minute election cases--they had a better overview than most of us:
Last week Georgia Superior Court Judge Brian Amero ordered a forensic audit by independent experts of 147,000 mail-in ballots counted in Fulton County, which includes Atlanta. Shockingly few mail-in ballots were rejected for invalid signatures, and the overwhelming majority of those ballots were counted in favor of Biden to provide him the margin of his reported victory in Georgia, as in other swing states.
Trump’s team sought to monitor the initial post-election sham review of ballots in Fulton County, which is Georgia’s most populous county. But Anti-Trump officials there blocked access by Trump’s Chief of Staff Mark Meadows to the process, despite how review of illegitimate mail-in ballots should have been open to the public as Democrats ran up an implausible 244,000-vote overall county margin for Biden there.
Election integrity is a matter of enormous public concern, not to be swept under the rug after the media declares one side to have won. This issue confounds the Never-Trumpers, who fail to support these election audits that include Republican review of many Arizona Maricopa County ballots.
This election audit in Georgia and also in Arizona could prove that the election was indeed stolen from Trump and his more than 74 million supporters. A recent Reuters/Ipsos poll demonstrates that most Republicans still view Donald Trump as the true winner of the presidential election.
This independent poll confirms that 61% of Republicans feel that the last election was stolen, and the same number do not think that mail-in ballots are counted accurately. Nearly 60% of Republicans view the January 6th protests at the Capitol as mostly peaceful, and by law-abiding Americans.
With no changes by the Pennsylvania Republican legislature to reduce mail-in voting fraud there, last week Democrats won a state senate election in northeastern Pennsylvania by a landslide. Perhaps Republicans would have picked up that seat if Pennsylvania had restored election integrity.
The Republican-controlled Texas legislature is wrapping up its biennial session now without enacting true election reform. The declining margins of victory for Republicans in Texas is reportedly due to changes in demographics, but the bigger reason is the increased exploitation of early and mail-in voting by the Democrat machine in the Lone Star state.
In contrast with Florida Governor Ron DeSantis, Texas Governor Greg Abbott failed to do anything to stop allowing hundreds of thousands of unverified mail-in ballots. A milquetoast bill promoted as election reform languishes in Austin, despite how Republicans have commanding majorities in both legislative chambers plus the governor’s mansion.
Failure to enact election integrity legislation signals inaction on other high-profile issues, too.
Now, in my comments below--and I'll be presenting all arguments--note that I'm arguing for a return to a true federalist vision of our constitutional order. The benefit of the doubt that I'm granting to Roberts is that that's his vision, too. Involving the local government--returning the field of election law to the states, as long as the laws are facially valid--would allow ordinary Americans to regain control. That's what the Founders envisioned in the Constitution, and that would have far more legitimacy than a judicially imposed solution. This doesn't mean that the SCOTUS would abjure involvement in any and all election law cases--only that they would defer to the levels of government closest to the people. Which is exactly what the Constitution envisioned. This long audit process may, in the long run, prove to be exactly the medicine needed to restore integrity to our electoral process.
So, the comments from the other post:
AnonymousMay 27, 2021 at 6:27 AM
Sounds good. States Rights. But if some White Supremacy state were to count all votes from a white area five times over, wouldn't it nullify the 15th Amendment? Or perhaps a corrupt State government could count five times over the votes from a black area, or even substitute fabricated votes, and claim racism and voter suppression if any questions were raised. Since money talks, it would seem a worthwhile investment for a country like China to buy up a handful of States and control American elections forever, after having bought up the media.
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mark wauckMay 27, 2021 at 7:36 AM
"as long as the laws in question are not discriminatory on their face it's time for the federal courts to more or less butt out."
If the laws are racially neutral the SCOTUS would back off and leave handling that to the enforcement branch, the executive. The examples you give are of non-neutral laws or of clear violations of laws.
AnonymousMay 27, 2021 at 8:22 AM
So who handles clear violations of election law in a timely manner if all elements of a State government are complicit?
AnonymousMay 27, 2021 at 8:31 AM
If even the executive branch drops the ball, are there no remedies through the courts?
AnonymousMay 27, 2021 at 8:52 AM
The executive, the President himself, asked the Supreme Court for a decision as to whether laws had been violated. They dropped the ball.
The law is someething of a safety valve. Like diplomacy, it permits issues to be addressed before they escalate to war or its equivalent. The Supreme Court not taking up the case brought to them by one third of the States and the President himself, it is almost inevitable that these issues will be resolved in other fashions, and it will not be pretty.
mark wauckMay 27, 2021 at 9:17 AM
Probably the federal government. It's not as if the courts have eliminated election fraud, is it? You can't really be serious with these questions?
mark wauckMay 27, 2021 at 9:18 AM
Nobody said the courts would NEVER get involved. Please read what I wrote, rather than just spinning off questions.
mark wauckMay 27, 2021 at 9:22 AM
"The law is something of a safety valve. Like diplomacy, it permits issues to be addressed before they escalate to war or its equivalent."
Right--so you're really happy with what the SCOTUS has done with the law for the past half century. How did that "safety valve" to prevent escalation to war work during the years before the Civil War? Please get serious.
The Constitution was not designed to establish rule by the SCOTUS.
AnonymousMay 27, 2021 at 10:47 AM
What you have written is admirable, but it addresses general considerations of election law, and points to future developments. But let us really get serious, first of all by acknowledging that the past election is not behind us. The Supreme Court was not asked to rule, but to issue a ruling on specific election irregularities. The law cannot eliminate election fraud, but should be able to address violations thereof. Diplomacy unfortunately does not always prevent war, but as von Clausewitz put it when unsatisfactory the next step is war. You "question whether what we see happening in Arizona with regard to the AZ senate's audit of Maricopa County may reflect the effect of Roberts' strategy." I would suggest that the various State audits, as well as revelations of illegalities and irregularities unknown to us but that POTUS 45 may be able to document, will have a more marked effect on future elections and where this Country is headed than any of Roberts' legal strategies.
mark wauckMay 27, 2021 at 11:05 AM
"the various State audits, as well as revelations of illegalities and irregularities unknown to us but that POTUS 45 may be able to document, will have a more marked effect on future elections and where this Country is headed than any of Roberts' legal strategies."
Did it ever occur to you that Roberts may be of the same opinion? That he thinks that audits and investigations by the people who are in charge of the elections, as designated by the US Constitution, the state legislatures, is the way to handle "illegalities and irregularities"? Is it really up to the SCOTUS to provide legislators and elected officials with backbones, when the laws are already clear? The notion that the SCOTUS can preserve our union and our federal republic is ultimately unworkable, and is certainly not the system envisioned or put on paper by the Constitutional Convention. Given that the Congress has evolved into something that no longer resembles what the Founders envisioned, returning election disputes to the level closest to We The People--to the country and state level, as specified by the Constitution--properly leaves the decision on the direction in which this country will proceed to the voters.
The SCOTUS has already screwed up much of our constitutional order by taking over matters that don't properly belong to it. The Court can't save us from our folly. Ultimately the people need to make their minds up through voting.
I don't insist that this is Roberts' position, but it's a plausible interpretation. Nor do I insist that it will work--that ultimately is a question that the people must decide. Not a panel of life appointees. If the people don't insist on constitutional government, there's little the SCOTUS can do in the long run.
AnonymousMay 27, 2021 at 11:28 AM
Too true, but isn't it unfortunate that in the weeks following the election none of the substantial allegations being made were addressed by the courts and legislatures, and the last minute appeal by Texas, the President and other States to the Supreme Court was not taken up. The longer this drags on the more devastating and disruptive the consequences are likely to be for the Nation.
mark wauckMay 27, 2021 at 11:37 AM
The counter argument that Roberts might well make is that it is, in fact, far less disruptive that "this" should "drag on" following the provisions in the Constitution and state law--as opposed to a judicially imposed solution. The judicial solution would never be able to ascertain the actual facts of the fraud, whereas this process may well establish the fraud beyond reasonable doubt.
I happen to regard the TX lawsuit as having been reasonably based. The fact remains that several swing states were totally controlled by the GOP while others had GOP controlled legislatures--the key in election law--yet the GOP in those states took no effective steps despite clear indications of what was coming. Is it really the job of the SCOTUS to take novel cases to rescue feckless politicians from responsibility for their mal/misfeasance? While I believe the constitutional principles are clear enough, the question of how the SCOTUS should conduct itself in a politically charged situation is not as clear.
aNanyMouseMay 27, 2021 at 11:50 AM
"If the people don't insist on constitutional government, there's *little* the SCOTUS can do in the long run."
Even if there's *little* the SCOTUS can do, why couldn't the SCOTUS do that "little", when presented with strong evidence of systematic misconduct?
If Roberts ends up going the route theorized here, OK, but until he does so, in *emphatic* ways, I assume that he was ducking for its own sake, or some such.
For the court to have dismissed pleas from c. 20 AGs, with minimal explanation, was a flip of the bird, that Roberts had better rectify very very soon.
AnonymousMay 27, 2021 at 12:10 PM
Thank you especially for these last two paragraphs, and the reminder that those we are prone to criticize may well be the adults confronting a complex situation. Sometimes you have to muddle on through, and hope that we and the Nation will come out the better for it.
mark wauckMay 27, 2021 at 12:21 PM
@ aNanyMouse: What you're asking the SCOTUS to do is to take on the role of commenting on the political situation we now find ourselves in--which is a situation with a long history and many complications that fall well outside what is found in the "constitution and laws" of this republic. That's a role for which the justices have no particular qualifications, and so they were perhaps wise to wait for another case "with minimal explanation." Did you know at the time of the TX case that the AZ case was headed to the SCOTUS? I'm not ashamed to say that I was not aware of that at the time. Would it have been proper for the SCOTUS to have offered that as a reason for declining to take the TX case? Arguably not.
"For the court to have dismissed pleas from c. 20 AGs, with minimal explanation, was a flip of the bird ..."
For those state AGs and legislatures to have taken no action to enforce their own voting laws--the authority given to them in the Constitution, not to the SCOTUS or any other court--was that not a flip of the bird ... to the voters? Was it right for those AGs and legislatures to PRETEND--I'm looking at YOU Mark Ackman--that that was someone else's responsibility? Was it entirely wrong for the SCOTUS to, in effect, suggest that the AGs and legislatures act to "rectify [that] very very soon"?
Ray - SoCalMay 27, 2021 at 8:50 AM
As a non lawyer, My take is usually the Supreme Court takes the easiest way out under Roberts, and avoid controversy. I’m amazed this case was started 5 years ago. This case being know it’s was scotus bound, nicely explains why scotus avoided at all costs weighing in on the 2020 election.
The easiest way out is put Election matters back in the state’s jurisdiction.
On other matters throw it back to congress to fix.
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mark wauckMay 27, 2021 at 9:26 AM
"the Supreme Court takes the easiest way out under Roberts"
I'm by no means a Roberts fan, but I'm willing to consider that an approach--in effect--of demanding that the Legislative and Executive branches bear their share of Constitutional burden. Whether or not that's Roberts' strategy for the long term, it is a federalist approach. My criticisms of Roberts' approach have to do with bowing to the culture.
Mark AckmannMay 27, 2021 at 11:40 AM
I think it's interesting that the argument for seeing things on the other hand (and thereby giving CJ Roberts the benefit of the doubt) seems to hinge on this notion that since the nation is "sharply divided" - by what or on what terms one has to ask - The Supreme Court can be given leave to make political considerations in ruling on the Law, i.e. the Court is playing King or Keeper of the Constitution (or CJ Roberts is) and deciding how best to keep the nation out of civil war (or something terrible that apparently would result from "sharp divisions" not being accomodated by him). But this argument for SCOTUS ruling on the basis of at least in part political considerations just drives the nail further into the coffin of the Rule of Law -- what good is PRETENDING to stay in your lane and rule on the law only, in order that you might in the future find the opportunity to really truly stay in your lane and rule on the law only? There will always be politics, there will always be contention and the whole point, the entire point in being a "nation of laws" is that there is a system of justice that allows for the laws to rule.
mark wauckMay 27, 2021 at 12:08 PM
Do me a favor and read what I write before commenting. Is that too much to ask?
I never argued that the SCOTUS "can be given leave to make political considerations in ruling on the Law". The SCOTUS is not required to accept any and all appeals. It accepts only a tiny number of petitions for review and it has long been established that it's prudent for the SCOTUS to wait for cases in which the factual basis raises clear constitutional or legal issues. That is not a "ruling" but is simply a prudential legal consideration on when a "case or controversy" is presented at a time and in such a manner that it's "ripe" for decision. This is a well established principle in judicial management.
It appears that the SCOTUS decided that the TX case wasn't the right case, but that the AZ is. I may disagree with that assessment, but there are arguments in favor of that position. The AZ case, if decided in favor of AZ, would potentially give all states a huge incentive to take control of their elections and root out fraud.
"the entire point in being a "nation of laws" is that there is a system of justice that allows for the laws to rule."
Really? The laws are not self executing. It takes people to enforce the laws. And the point of being a federal republic is that the nation isn't ruled by a panel of nine unelected lawyers. Rule of law is just a bit more complicated than that and involves the legislature and executive--as Andrew Jackson figured out, long ago. Just because the nation has gotten used to giving deference to the SCOTUS no matter what, doesn't mean that that situation will continue forever.
With that in mind, the SCOTUS is arguably in a difficult position when dealing with election law, because the Constitution views election law as something to be handled at the state level. To argue that the SCOTUS should exercise restraint, therefore, is not to abjure "rule of law" at all. Whatever I may think of the SCOTUS' handling of the TX case, it did not "PRETEND[] to stay in its lane and rule on the law only." It provided a rationale for not taking up a constitutional issue at that time.