The Trump campaign’s emergency petition asking the U.S. Supreme Court to review Pennsylvania’s administration of the 2020 election and reverse President-elect Joe Biden’s victory is a frustrating document.
I refer not merely to its untimeliness, the commonwealth having certified Biden as the winner weeks ago, and the Electoral College having already voted on Dec. 14, with Pennsylvania’s 20 votes cast for Biden.
As a matter of craftsmanship, the petition for certiorari, principally penned by Chapman Law School’s John Eastman, is superior to other pleadings that the campaign has generated. It also addresses matters of great significance for Americans concerned about election integrity.
In an era when the left has largely succeeded in its push to liberalize voting rules, such that absentee voting, including no-excuse mail-in voting, is now widely used, the issues raised deserve consideration — especially by Congress and state legislatures.
Yet the petition falls woefully short as a legal application to the nation’s highest court. It fails even to mention, much less address, the Third Circuit precedent that precludes the claims it advances — precedent that is not unknown to the campaign, since it dramatically affected the legal strategies pursued in earlier rounds of litigation.
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Those earlier rounds, too, are essentially ignored as if they never happened — as if the president expects the Supreme Court to examine his grievances on tabula rasa, taking no notice of earlier contradictory positions and forfeited claims.
There are, moreover, the now-familiar flaws: The campaign continues to complain about the potential for fraud while not alleging any actual fraud — even as, for public consumption, the president persists in portraying the election as pervasively fraudulent to the point of being "rigged."
And, without having established that the alleged misconduct materially affected the outcome of the election, much less resulted in massive fraud, the campaign would have the high court nullify the election, disenfranchise 6.8 million Pennsylvanians, and delegate the state legislature to select new electors — never mind that the electors have already been chosen by popular election, been certified under state law, and cast their votes pursuant to federal law.
Suffice it to say that these allegations raise important election-integrity issues. They ought to be addressed. Many of us agree (certainly, I do) that mail-in voting is rife with potential for fraud.
I would like to return to the norm of in-person voting on Election Day (make it two or three consecutive days if that’s more realistic for accommodating approximately 160 million voters). Let absentee voting be the non-preferred exception it has traditionally been, permissible only based on a worthy excuse.
We should all vote at the same time based on the same available information. Progressive opinion, which punches above its weight, runs against this. I’d be delighted to have that debate.
If not, or at least in the meantime, we should be able to make the point that if we are going to have mail-in voting, then that argues for ratcheting up election-integrity provisions, not further loosening them, as courts and bureaucrats, especially in blue states, are wont to do.
All that said, though, what I’ve just described is a prospective project. As far as the 2020 election is concerned, the Trump campaign has already lost on at least three of these issues, and arguably on all of them.
The campaign’s petition repeatedly states its core argument, which draws on the late Chief Justice William Rehnquist’s Bush v. Gore (2000) concurrence (joined by Justices Clarence Thomas and the late Antonin Scalia).
To wit, the Constitution’s Electors Clause (Art. II, Sec. 1, Cl. 2) empowers the state legislatures to determine the "Manner" of appointing presidential electors; and, as Chief Justice Rehnquist put it, "a significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question" — i.e., one fit for resolution by the federal courts.
The campaign alleges three failures by state officials to comply with Pennsylvania’s election laws, and incorporates a fourth that (as we have repeatedly noted) is already before the U.S. Supreme Court, which has not yet decided whether to grant review.