By David Singer ——Bio and Archives--February 24, 2021
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Refusal of the US Supreme Court (SCOTUS) to hear a number of Petitions challenging the 2020 election results in Pennsylvania, Georgia, Michigan and Wisconsin (Defendant States) will enable President Trump to justifiably maintain his claim that:
"election officials in each of the Defendant States altered or otherwise failed to enforce state election laws in the conduct of the 2020 election"
"The Constitution gives to each state legislature authority to determine the "Manner" of federal elections. Art. I, §4, cl. 1; Art. II, §1, cl. 2. Yet both before and after the 2020 election, nonlegislative officials in various States took it upon themselves to set the rules instead. As a result, we received an unusually high number of petitions and emergency applications contesting those changes…. These cases provide us with an ideal opportunity to address just what authority nonlegislative officials have to set election rules, and to do so well before the next election cycle. The refusal to do so is inexplicable."Justice Alito – supported by Justice Gorsuch - published his own dissenting opinion – stating:
"These cases call out for review"Six other Supreme Court judges disagreed – but regrettably failed to deliver written reasons justifying their refusal to hear the Petitions. Justice Thomas was critical of the majority decision:
"One wonders what this Court waits for. We failed to settle this dispute before the election, and thus provide clear rules. Now we again fail to provide clear rules for future elections. The decision to leave election law hidden beneath a shroud of doubt is baffling. By doing nothing, we invite further confusion and erosion of voter confidence. Our fellow citizens deserve better and expect more of us."
"Five to six weeks for judicial testing is difficult enough for straightforward cases. For factually complex cases, compressing discovery, testimony, and appeals into this timeline is virtually impossible."Justice Thomas highlighted that:
"… post election litigation sometimes forces courts to make policy decisions that they have no business making. For example, when an official has improperly changed the rules, but voters have already relied on that change, courts must choose between potentially disenfranchising a subset of voters and enforcing 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."The shortcomings of the current system of post-election judicial review were summarised by Justice Thomas:
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"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 maladministration, 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… An incorrect allegation, left to fester without a robust mechanism to test and disprove it, "drives honest citizens out of the democratic process and breeds distrust of our government."[Purcell, 549 U. S., at 4]Justice Thomas was left to lament:
"The issue presented is capable of repetition, yet evades review"Until reviewed – the declared results of the 2020 elections will remain a burning issue.
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David Singer is an Australian Lawyer, a Foundation Member of the International Analyst Network and Convenor of Jordan is Palestine International—an organization calling for sovereignty of the West Bank and Gaza to be allocated between Israel and Jordan as the two successor States to the Mandate for Palestine. Previous articles written by him can be found at: jordanispalestine.blogspot.com