by James V DeLong
The
complaint filed in Pennsylvania by the Trump campaign is a superb piece of
legal craftsmanship. It
was filed in federal court, not state. The gist is that some of the
state's actions, and particularly the exclusion of Republican poll-watchers
during the counting of hundreds of thousands of mail-in ballots, violated
federal constitutional requirements.
The
point is obvious enough once one thinks of it, but it's brilliant all the
same. It shifts the focus from state law, where a politicized Pennsylvania
court has the last word, to federal law, where the U.S. Supreme Court rules.
As
for the obviousness of the point, consider as a thought experiment a state law
requiring that all votes be counted in secret by an unelected board named by
the party in power. Could it survive a constitutional challenge?
As
my old Harvard constitutional law professors would have said, "to ask the
question is to answer it." It is hard to count all the
constitutional guarantees violated here: Equal Protection, Due Process,
Privileges and Immunities. Indeed, the complaint stacks up the Supreme
Court precedents supporting its arguments, including the long line of ringing
statements in the chain of one-person-one-vote decisions.
Even
the late Justice Ginsburg, who never met a progressive argument she could not
support, would have trouble upholding such a law.
Given
this framework, the historic decision in Bush v. Gore becomes useful but
unimportant. The problem there was that the Florida Supreme Court
pretended to be interpreting state law, and the legal convention is that the
U.S. Supreme Court must defer on state issues, even though the Florida court
was making up new law as it went along and changing its mind shamelessly.
The
U.S. Supreme Court's decision in Bush v. Gore was muddled by the need to wiggle
around this problem without addressing it head-on, because it would not do to
cast doubt on the integrity of fellow judges. (The union is
strong.) Only a three-justice concurrence said flatly that the Florida
Court was contradicting the Legislature, and that would not do. Four
justices went off on an opaque Equal Protection argument.
A
result of this muddle, say friends in academia, is that progressive legal
scholars are contemptuous of the decision and dismiss it as irrelevant.
Trump's
Pennsylvania case does not have the complication of the state versus federal
law interaction because it jumps over the state law and, as noted, relies on a
host of U.S. SCOTUS cases about the importance of voting.
The
complaint has much more, designed to bolster its central point. Many other
instances of fraudulent activity are cited, which lends credibility to the main
accusation. They are also indispensable to establish a factual case —
that the exclusion not only occurred, but mattered, because thousands of
ballots were counted in secret.
Reading
the news reports, it appears likely that similar complaints are going to be
filed in other swing states and that perhaps we are seeing the exposure of a
broad-based effort to corrupt the election. Joe Biden claimed that the
Democrats were mounting the biggest voter fraud effort in history, and a good
rule for living is that when someone tells you he is about to screw you over,
believe him.
It
is possible, then, that a number of cases will hit the Supreme Court in about
three weeks.
Everyone
in the legal world assumes that the justices, bruised by the excoriation the
Court has received over Bush v. Gore (even though the result was right), would
never put itself in the position of reversing the apparent results of a
presidential election. This assumption is the reason for the Democrats'
efforts to create an irresistible bandwagon effect, but the president's lawyers
may have out-maneuvered them. The justices may have no choice except to
decide the election, one way or the other, and to be put to the choice of
reversing the media-claimed results or ratifying massive fraud.
The
legitimacy of the Court could survive through, and even be enhanced by, a
carefully explained reversal of initial results. It could not survive a
mealy-mouthed ratification of obvious fraud. If Trump's lawyers make
their case factually, the Court must agree.
As
Lincoln said: "we cannot escape history. We ... will be remembered
in spite of ourselves ... in honor or dishonor, to the latest generation."
James
V DeLong lives in the Shenandoah Valley and is a former editor of the Harvard
Law Review.