2020 Election snowball threatens to bury Supreme Court
Ohio has shown the Supreme Court the escape route to being buried under a gigantic political snowball of cacophonous lawyers, legislators, interest groups and media.
The motion lodged by Texas in the Supreme Court for leave to file a Bill of Complaint against Pennsylvania, Georgia, Wisconsin and Michigan relating to their conduct of the 2020 elections in their respective States - has started a snowball that is careering out of control and threatening to bury the Supreme Court as many other parties seek to weigh in and have their say.
The most prominent is President Trump who seeks to intervene as:
“PRESIDENT OF THE UNITED STATES, IN HIS PERSONAL CAPACITY AS CANDIDATE FOR RE-ELECTION TO THE OFFICE OF PRESIDENT, Plaintiff in Intervention.”
Trump’s contender for the Presidency – Joe Biden – has not been similarly spurred into intervening.
17 States – Missouri, Arkansas, Louisiana, Mississippi, South Carolina, Alabama, Florida, Indiana, Kansas, Montana, Nebraska, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah and West Virginia – have filed a brief in support of the Texas motion.
6 of those States – Missouri, Arkansas Louisiana, Mississippi, South Carolina and Utah - are seeking to intervene and join Texas’s Bill of Complaint as Plaintiffs as modified by proposed intervenor President Donald J Trump - in the event that the Court grants Texas leave to file the Bill of Complaint.
Defendants - Pennsylvania, Georgia, Wisconsin and Michigan - have garnered support of the District of Columbia and 22 States and Territories: California, Colorado, Connecticut, Delaware, Guam, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico , New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, US Virgin Islands, and Washington – who seek to obtain leave to file a brief in support of the four defendants in opposition to the Texas motion for leave to file its Bill of Complaint.
Arizona is pressing for a quick resolution and a number of other interest groups and politicians also seek to be heard in support of Texas or the four defendant States.
One beacon of hope has emerged from this ever-growing snowball: the motion by Ohio for leave to file and brief in support of neither party.
The Ohio motion sets out in easily understood terms the real bone of contention dividing the nation:
“The Presidential Electors Clause provides: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” Art. II, §1, cl.2.
Ohio has previously taken the position that this language means what it says.
In a brief filed just last month, it argued that this Clause must be understood as empowering “state legislatures, not state courts, [to] set the rules for picking presidential electors.” Republican Party of Pa. v. Boockvar, Nos. 20-542, 20-574, Br. of Amicus Curiae Ohio in Support of Petitioners 3 (Nov. 9, 2020).
This means that state courts violate the Constitution when they use judge made doctrines or strained interpretations to change the legislatively fashioned rules governing the manner by which presidential electors are chosen. Id. at 5.
The Electors Clause means today what it meant a month ago.
Ohio hopes this Court agrees.
But either way, the States need this Court to decide, at the earliest available opportunity, the question whether the Electors Clause permits state courts (and state executive officials) to alter the rules by which presidential elections are conducted.
The People need an answer, too.
Until they get one, elections will continue to be plagued by doubts regarding whether the President was chosen in the constitutionally prescribed manner.”
Ohio has shown the Supreme Court the escape route to being buried under this gigantic political snowball of cacophonous lawyers, legislators, interest groups and media.