Note: In order to better understand this article, it may be useful to read the first instalment. You can read ‘The Election Dispute Explained Unbiased and SIMPLY!’ here:
When I started researching the election dispute, one thing became abundantly clear: most mainstream publications don’t seem to know that President Trump’s legal team has only filed a handful of lawsuits to contest the election. Every major news source either omits the fact that there are other plaintiffs independently pursuing action against election commissions in Pennsylvania, Wisconsin, Minnesota and Georgia- or they blur the fact and only vaguely mention it on the 12th page of an article that has already (and repeatedly) referred to the independent plaintiffs and the Trump Campaign’s legal efforts as if they were the same thing.
No matter what the reason for the sloppiness of their research and writing skills, mainstream publications were put in a position of having to explain why there were ‘Trump (legal) victories’ in the United States Supreme Court and the Rust Belt, this week.
Administration of The Court
From time to time- and often after a serious shakeup to the United States Supreme Court (IE the retirement of a Chief Justice or the death of a long-serving Associate Justice), the Court will restructure its administration apparatus. To someone without a law degree- this is a fancy of saying- ‘Individual Justices on the Supreme Court are like shepherds to legal regions in the U.S. They watch over lower courts in certain areas, give guidance, hear emergency appeals and shepherd hot-button cases through the court system to the Supreme Court (if needed).’
On November 20th, Chief Justice John Roberts announced that there would be a restructuring of the Court’s administrative apparatus. After the death of Justice Ruth Bader Ginsburg, Justice Stephen Breyer had to fill-in and take on the remarkably taxing duty of shepherding two circuit courts. Justice Breyer found himself in the position of having to manage his own circuit (the First Circuit) and substitute for Ginsburg’s circuit (the Second Circuit), simultaneously. Managing two circuit courts is not uncommon (seeing how there are 12 circuit courts and 9 justices) but this task is usually reserved for the younger Justices. With Justice Amy Coney Barrett joining the Court, having an 82-year-old manage two circuit courts (one of which possesses the largest legal jurisdiction in the world, New York) was no longer necessary.
Chief Justice Roberts announced the Court Assignments would be as such:
- For the District of Columbia Circuit – John G. Roberts, Jr., Chief Justice
- For the First Circuit – Stephen Breyer, Associate Justice
(Maine, Massachusetts, New Hampshire, Puerto Rico, Rhode Island)
- For the Second Circuit – Sonia Sotomayor, Associate Justice (Connecticut, New York, Vermont)
- For the Third Circuit – Samuel A. Alito, Jr., Associate Justice (Delaware, New Jersey, Pennsylvania, Virgin Island)
- For the Fourth Circuit – John G. Roberts, Jr., Chief Justice (Maryland, North Carolina, South Carolina, West Virginia, Virginia)
- For the Fifth Circuit – Samuel A. Alito, Jr., Associate Justice (Louisiana, Mississippi, Texas)
- For the Sixth Circuit – Brett M. Kavanaugh, Associate Justice (Kentucky, Michigan, Ohio, Tennessee)
- For the Seventh Circuit – Amy Coney Barrett, Associate Justice (Illinois, Indiana, Wisconsin)
- For the Eighth Circuit – Brett M. Kavanaugh, Associate Justice (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota)
- For the Ninth Circuit – Elena Kagan, Associate Justice (Alaska, Arizona, California, Guam, Hawaii, Idaho, Oregon, Montana, Nevada, Northern Mariana Islands, Washington)
- For the Tenth Circuit – Neil M. Gorsuch, Associate Justice (Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming)
- For the Eleventh Circuit – Clarence Thomas, Associate Justice (Alabama, Florida, Georgia)
- For the Federal Circuit – John G. Roberts, Jr., Chief Justice.
In an innocuous and seemingly bland retooling of an uninteresting administrative structure- one can find the number one thing to look for in coming days. These Court shepherds have a lot of power. The early guidance they issue can make a large impact in the way courts decide something later on. Notably: every single one of these court assignment’s places a Republican-appointed Justice as the administrator of the states most in controversy.
- Justice Samuel Alito administers Pennslyvania
- Justice Amy Coney Barrett administers Wisconsin
- Justice Brett Kavanaugh administers Michigan and Minnesota
- Justice Clarence Thomas administers Georgia
It is unclear how these Justices will affect their new Court Assignments. However, Pennsylvania and Justice Alito may be the greatest indicator.
(1)There were some victories (albeit incremental) for the Trump Campaign early-on in Pennsylvania. An emergency appeal by the Republican Party of Pennsylvania (independent of the Trump Campaign) to Justice Alito was decided in the Republican Party’s favour. Justice Alito ordered that all mail-in-ballots received after 8 P.M. on Election Day be segregated- so that the legality of these ballots can be adjudicated at another time.
This order does not mean anything in a vacuum. However, emergency orders are usually a good signal of how a Justice feels about an issue and how the Court will eventually adjudicate once the case is called before the Court.
(2) Other rulings were handed down this week which are favourable to the Trump Campaign. These rulings, resulting from cases filed against Pennyslvania Secretary of State Kathy Boockvar ordered that certification of election results must cease. The state judge ordered that no counties should continue to certify the election results in Pennsylvania. The case (which is so new that it has yet to be entered into the Westlaw or Nexis archives) was not filed by the President. The Judge’s order prevents 7 of 67 counties (about 600,000 votes) from being certified. In contravention of the Judge’s ruling, the Secretary of State and Governor certified the entire state’s election anyway. The question of whether the Secretary of State and Governor’s action violated the court order has yet to be determined by any judicial body in Pennsylvania.
*** Note: It does not appear the case from (2) will be entered into the public domain or academic records. However, because I happen to know practically everyone on Twitter and a good deal of the figures working on the ground in Pennsylvania, Georgia and Arizona on both sides- I have obtained a copy of Kelly Et Al v. Pennsylvania which you can read here from my Twitter time line:
Interestingly, the judge in this case flags some of the voting irregularities as being of “state and national concern”. It is yet to be seen if this case will be used for further appeals.
UNITED STATES SUPREME COURT
On November 27, the President’s Campaign was defeated on a federal appeal out of Pennsylvania last week. In a case titled: DONALD J. TRUMP FOR PRESIDENT, INC. Et Al. v. Secretary Commonwealth of PENNSYLVANIA, Judge Stephanos Bibas wrote for a unanimous court. The gravamen of the president’s suit rested on two issues: 1) Poll Monitors were not allowed to inspect ballots; therefore, there was no way real-time verification. 2) The ballot curing process violated the 14th Amendment by creating two different standards of voting within the same state.
Note: *** As Rudy Guiliani stressed in the documents supplied to the court, and as the judge notes in the case- this is not a fraud case. Fraud is not at issue here. This case was pursued in front of the court as a matter of law.
The court of appeals rejected these arguments. In a diametrically opposed decision to Kelly, the court used the same language as Kelly. Whereas Kelly’s judge wrote that the case was likely to “succeed on the merits”, the Judge In TRUMP. v. Commonwealth of PENNSYLVANIA. found that the case was unlikely to “succeed on the merits”. With diverging opinions occurring within days of each other, a legal chasm that can only be filled by further appeal (most likely to the Supreme Court) is created.
Will the Supreme Court hear this case?
That is the million-dollar question. The Supreme Court has been mum on this issue. No one knows if the Court will take this case on appeal. A favourable or unfavourable ruling for the Trump Campaign would have a rippling effect. As all Supreme Court cases are binding on all other courts in the country- a ruling in Pennsylvania would likely flip (or maintain) every other state in controversy. One Supreme Court case from Pennsylvania would affect every other pending case in Michigan, Wisconsin, Arizona, Georgia, etc. Whatever the Court rules would be final. There is no appeal after the Supreme Court. The Supreme Court is the legal omega.
When would the Supreme Court step in (if they were going to)?
Because of various constitutional provisions (mentioned in the first instalment of this article series), the Court would need to announce soon. Most likely, the Court would need to announce no later than the 8th and decide the case no later than the 13th (the day before the electoral college convenes). As it stands, there is 10 days of hope left for the Trump Campaign’s legal team.
The Court can act extremely swiftly when it wants to. Bush v. Gore was argued and decided in 24 hours. It is possible for the Court to do the same thing here. The question is: does the Court want to?
States have marched-on with their certification processes. While state legislatures in Pennsylvania, Michigan and Arizona have held hearings on voter fraud- the states have continued to certify their election results. It appears that every state will soon certify their results and will dispatch electors to the electoral college accordingly.
Despite sympathetic audiences by the state legislatures to the claims of voter fraud- no state legislature has moved as far as to override their election results and appoint electors according to a vote by the state house and senate. If there is going to be any reassignment of electors, it would have to be done by ruling of the United States Supreme Court.