Monday, February 22, 2021

Golden Oldies

When was the last time CPAC was a political force?  1992?

Going backward is not going forward.
So even the courts are part of it? The conspiracy has to include the courts themselves, which refused to rule the way Trump's supporters wanted them to. The "argument" that states violated their own election laws rests on this fact: that even the courts, up to the Supreme Court, were part of the plot.  Significantly, the Supremes declined to play a role in that fantasy game; which refusal was objected to by Justices Thomas, Alito, and Gorsuch.  Thomas' dissent was the only notable one, if only for the batshit basis of it. So here we go!

Unclear rules threaten to undermine this system. They sow confusion and ultimately dampen confidence in the in- tegrity and fairness of elections. To prevent confusion, we have thus repeatedly—although not as consistently as we should—blocked rule changes made by courts close to an election. 

An election system lacks clear rules when, as here, differ- ent officials dispute who has authority to set or change those rules. This kind of dispute brews confusion because voters may not know which rules to follow. Even worse, with more than one system of rules in place, competing can- didates might each declare victory under different sets of rules.

We are fortunate that the Pennsylvania Supreme Court’s decision to change the receipt deadline for mail-in ballots does not appear to have changed the outcome in any federal election. This Court ordered the county boards to segregate ballots received later than the deadline set by the legisla- ture. Order in Republican Party of Pa. v. Boockvar, No. 20A84. And none of the parties contend that those bal- lots made an outcome-determinative difference in any rele- vant federal election.

But we may not be so lucky in the future. Indeed, a separate decision by the Pennsylvania Supreme Court may have already altered an election result. A different petition argues that after election day the Pennsylvania Supreme Court nullified the legislative requirement that voters write the date on mail-in ballots. See Pet. for Cert., O. T. 2020, No. 20–845. According to public reports, one candidate for a state senate seat claimed victory under what she con- tended was the legislative rule that dates must be included on the ballots. A federal court noted that this candidate would win by 93 votes under that rule. Ziccarelli v. Alle- gheny Cty. Bd. of Elections, 2021 WL 101683, *1 (WD Pa., Jan. 12, 2021). A second candidate claimed victory under the contrary rule announced by the Pennsylvania Supreme Court. He was seated.
That is not a prescription for confidence. Changing the rules in the middle of the game is bad enough. Such rule changes by officials who may lack authority to do so is even worse. When those changes alter election results, they can severely damage the electoral system on which our self-governance so heavily depends. If state officials have the authority they have claimed, we need to make it clear. If not, we need to put an end to this practice now before the consequences become catastrophic.

Shorter Thomas: in order to prevent confusion we must sow confusion.  As Mark Joseph Stern said about this argument:
Note: it is hornbook Constitutional law that the Federal Courts can't interfere with state interpretations of their state constitutions where such interpretations don't conflict with Federal/Constitutional law.

Naw, we ain't through yet! Notice the complete absence of legal citations OR citations to facts presented in briefs by the parties in the case Thomas is opining on:

In recent years, however, many States have become more permissive, a trend greatly accel- erated by COVID–19. In Pennsylvania, for example, mail-in ballots composed just 4% of ballots cast in 2018. But the legislature dramatically expanded the process in 2019, thereby increasing the mail-in ballots cast in 2020 to 38%.

This expansion impedes postelection judicial review be- cause litigation about mail-in ballots is substantially more complicated. For one thing, as election administrators have long agreed, the risk of fraud is “vastly more prevalent” for mail-in ballots. Liptak, Error and Fraud at Issue as Absen- tee Voting Rises, N. Y. Times, Oct. 6, 2012. The reason is simple: “[A]bsentee voting replaces the oversight that exists at polling places with something akin to an honor system.” Ibid. Heather Gerken, now dean of Yale Law School, ex- plained in the same New York Times article that absentee voting allows for “simpler and more effective alternatives to commit fraud” on a larger scale, such as stealing absentee ballots or stuffing a ballot box, which explains “ ‘why all the evidence of stolen elections involves absentee ballots and the like.’” Ibid. The same article states that “[v]oting by mail is now common enough and problematic enough that election experts say there have been multiple elections in which no one can say with confidence which candidate was the deserved winner.” Ibid.

Pennsylvania knows this well. Even before widespread absentee voting, a federal court had reversed the result of a state senate election in Philadelphia after finding that the supposedly prevailing candidate “conducted an illegal ab- sentee ballot conspiracy and that the [election officials] cov- ertly facilitated the scheme with the specific purpose of en- suring a victory for” that candidate. Marks v. Stinson, 1994 WL 146113, *29, *36 (ED Pa., Apr. 26, 1994). This problem is not unique to Pennsylvania, and it has not gone away. Two years ago, a congressional election in North Carolina was thrown out in the face of evidence of tampering with absentee ballots. Because fraud is more prevalent with mail-in ballots, increased use of those ballots raises the likelihood that courts will be asked to adjudicate questions that go to the heart of election confidence.

Fraud is not the only aspect of mail-in ballots that complicates postelection judicial review. Also relevant are the corresponding safeguards that States put in place to ame- liorate that heightened risk of fraud. To balance the “strong interest” of ballot access with the “‘compelling interest in preserving the integrity of [the] election process,’” Purcell, 549 U. S., at 4, many States have expanded mail-in ballots but sought to deter fraud—and create mechanisms to detect it—by requiring voters to return ballots in signed, dated se- crecy envelopes. Some States also require witness or notary signatures. Tallying these ballots tends to be more labor intensive, involves a high degree of subjective judgment (e.g., verifying signatures), and typically leads to a far higher rate of ballot challenges and rejections. Litigation over these ballots can require substantial discovery and la- bor-intensive fact review. In some cases, it might require sifting through hundreds of thousands or millions of ballots. It also may require subjective judgment calls about the va- lidity of thousands of ballots. Judicial review in this situa- tion is difficult enough even when the rules are clear and the number of challenged ballots small. Adding a dispute about who can set or change the rules greatly exacerbates the problem.

Third, and perhaps most significant, postelection litiga- tion sometimes forces courts to make policy decisions that they have no business making. For example, when an offi- cial has improperly changed the rules, but voters have al- ready relied on that change, courts must choose between potentially disenfranchising a subset of voters and enforc- ing the election provisions—such as receipt deadlines—that the legislature believes are necessary for election integrity. That occurred last year. After a court wrongly altered South Carolina’s witness requirement for absentee ballots, this Court largely reinstated the original rule, but declined to apply it to ballots already cast. Andino v. Middleton, ante, p. ___. Settling rules well in advance of an election rather than relying on postelection litigation ensures that courts are not put in that untenable position.

In short, the postelection system of judicial review is at most suitable for garden-variety disputes. It generally cannot restore the state of affairs before an election. And it is often incapable of testing allegations of systemic maladmin- istration, voter suppression, or fraud that go to the heart of public confidence in election results. That is obviously problematic for allegations backed by substantial evidence. But the same is true where allegations are incorrect. After all, “[c]onfidence in the integrity of our electoral process is essential to the functioning of our participatory democracy.” Purcell, supra, at 4; cf. McCutcheon v. Federal Election Comm’n, 572 U. S. 185, 191, 206–207 (2014) (plurality opinion) (identifying a compelling interest in rooting out the mere “appearance of corruption” in the political process). An incorrect allegation, left to fester without a robust mech- anism to test and disprove it, “drives honest citizens out of the democratic process and breeds distrust of our government.” Purcell, supra, at 4.

Yes, he cites Purcell and McCutcheon; but neither case stands for the proposition that fraud is "vastly more prevalent" for mail-in ballots (significantly, Thomas doesn't refer to any information from states which rely exclusively on mail-in ballots for all elections).  He does cite a court ruling where the PA court ruled on PA law involving a state election; but that's not the type of election being presented by the case before the Court, so it's hard to see how the legal reasoning applies.  The crux of his case rests on a citation to a New York Times article.  Which is barely grounds for a legal conclusion in any court in the land; except in the Supreme Court as imagined by Justice Thomas.

Small wonder Gorsuch and Alito dissented separately.

The facts in that first paragraph quoted?  No citation for those at all.  Had my Freshman English students submitted a claim like that in a research paper, I'd have flagged it for having no authority behind it.  For all I know, Thomas pulled that out of his ass.  We expect at least as high a standard from our Supreme Court Justices as we do from our college freshmen.

There is a very radical argumentalm ost buried here:  that courts should get involved in elections and determining how they are conducted before they are conducted, or after if necessary, without regard to questions of mootness because the outcome is already settled.  That is, the states should run elections according to the laws passed by the legislature, but the courts should decide how those laws are interpreted long after the election, if necessary, and despite the outcome.  This is Bush v. Gore on steroids.  Then the Court issued a per curiam opinion which papered over the disagreements among the justices on what should have happened.  Per curiam in Bush portrayed a false unity when the actual ruling was a 5-4 decision, and even then the Court tried to declare Bush v. Gore had no precedential value.  They knew they were playing with fire.  Now, in the name of preserving the electoral system from a conflagration, Thomas wants the courts to play the role of chief arsonist.

But isn't that what Trump wants, too?

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