Friday, October 29, 2021

Election Law Is Hard!

The separate question of whether WSJ should have run Trump's "bananas" letter is not addressed here (though I think the WSJ board acquits itself well per the Raw Story version of what they said in their defense. There, I didn't address it, AND I've run rings 'round you logically!). But in the RS article they link to this decision by Justice Alito, from which I quote:

Until today, this Court was not informed that the guidance issued on October 28, which had an important bearing on the question whether to order special treatment of the ballots in question, had been modified.  The application received today also informs the Court that neither the applicant nor the Secretary [of State of Pennsylvania] has been able to verify that all boards are complying with the Secretary's guidance, which, it is alleged, is not legally binding on them.

And what did Justice Alito order?

All county boards of election are hereby ordered, pending further order of the Court, to comply with the following guidance provided by the Secretary of the Commonwealth on October 28 and November 1, namely, (1) that all ballots received by mail after 8:00 p.m. on November 3 be segregated and kept “in a secure, safe and sealed container separate from other voted ballots,” and (2) that all such ballots, if counted, be counted separately.

In simple terms, the Court ruled that, whether or not the directives of the PA SOS were binding on the state boards of election, the Court's order certainly was.  I suspect this was a matter of PA state law, not of some conspiracy by national Democrats.  It's noteworthy that there is clearly a federal overlay on the states in matters of Presidential elections, and the states don't get to do things entirely as they please.

That's been the sotto voce argument about Trump "packing" state boards and other agencies with MAGA believers who will deliver unto him the electoral prize in 2024.  Yeah, not so fast.  The people who think Rehnquist's dicta in Bush v. Gore (that states can't change laws too close to elections) don't understand that was Rehnquist's opinion, and not the law of the land or even a holding of the Court, are the same people who think it's just a matter of who decides how the electoral votes go.  It isn't.  There are laws.  And just as the courts told Trump he couldn't hanky-panky his way to victory (they are still the unsung heroes of our republic, IMHO), they will tell Trump he can't weasel his way in, either.

There are rules.  They will be followed.  Period.  It may get even messier in 2024 than it was in 2020, but rampant chaos will not see Trump installed in spite of the outcome in each of the 50 states.  If I could I would certainly wish this whole mess into the cornfield, Anthony; but I can't, as my gaze is neither wet nor purple (read the story).  I don't know the details of the PA case, but the Court made sure the vote count was orderly and proper, and led to a verifiable and legal result.  Throwing out the popular vote in favor of your candidate is neither order, proper, nor legal; and it won't be allowed to stand.

I'm no more an election law expert than you, but if the system is that fragile, it would have collapsed decades ago.  There is indeed nothing new under the sun.  Ecclesiastes wasn't a lawyer, but he damned well could have been.

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