SCOTUS and The Ballot

We are many states united by a federal government, bound together by our Constitution.

“The single most important part of our Constitution is the design of the document itself. That design divides the limited power of government vertically between state and federal government and it distributes power horizontally between co-equal branches. It is this very delicate balance of power entrusted to competing factions that ensures that liberty for the people will endure. It’s the Constitution’s design that protects against the mischief that results from the concentration of political power.”

– Senator Charles Grassley’s opening remarks,
Senate Judicial Hearings to appoint
Judge Neil Gorsuch
to the Supreme Court,
March 17, 2017

The Supreme Court of the United States (SCOTUS) will begin listening to arguments supporting and countering the decision to exclude the name of candidate Donald Trump from Colorado State ballots.

When the U.S. Constitution was ratified in 1789, preserving sovereignty was important to the States, and they were adamant about retaining control of their elections.  Each State determines the laws and rules for its local, state and federal elections, yet the question of whether a state can choose to exclude or include candidate Donald Trump on the 2024 state’s ballot is now before SCOTUS.

The answer in short: Respecting the separation of state and federal governments, it is up to each state to decide to include or exclude a candidate from its ballot.

Here we have a presidential candidate who could potentially be disqualified at any point during this election cycle, even after the election in November.  Shouldn’t the insurrection case take priority, since the outcome is of utmost importance to the entire nation?  He is potentially the Republican nominee, yet the voting public does not know if he is eligible to hold office.  How is it possible that a question of this importance has been left to fester for THREE YEARS without a definitive decision by the courts?  Still, the DC Court has postponed its decision!

Question: Does a case of “insurrection” belong in the District and Circuit Court Appellate system, or should cases of this nature and importance be heard in the Federal Court (established in 1982), where other grievances concerning government are heard?  Decisions from District Courts are open for appeal in the regional Circuit Courts, not to reargue the case, but to ensure rules were followed and laws were applied correctly.  The Federal Court is a national court.  A case in the Federal Court would certainly speed up the process, because any appeal would go directly to the U.S. Supreme Court.

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Another Question: How much authority does the Supremacy Clause in the U.S. Constitution give SCOTUS over state elections?

Supremacy Clause

Article VI, Paragraph 2 of the U.S. Constitution is commonly referred to as the Supremacy Clause.  It establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions. It prohibits states from interfering with the federal government’s exercise of its constitutional powers, and from assuming any functions that are exclusively entrusted to the federal government. It does not, however, allow the federal government to review or veto state laws before they take effect.

https://www.law.cornell.edu/wex/supremacy_clause (retrieved from the World Wide Web on 020324)

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Bush v Gore

The last time SCOTUS took a case that could impact a presidential election in such a significant way was in 2000 when candidate George W. Bush (then governor of Texas) and candidate Al Gore (then U.S. Vice President) challenged the 2000 election results in Florida. SCOTUS decided to review the case.  The decision from SCOTUS, that Florida must stop recounting votes, violated Florida’s autonomy.  The SCOTUS decision effectively allowed the Supreme Court to decide who would be the next president.  That president, George W. Bush then chose the next Supreme Court Chief Justice.  The separation of powers was breached.  The consequences of that SCOTUS decision have been lasting.  So how was the country impacted by this breach?

The decision to stop recounting votes handed the election to President George W. Bush.  He had a White House staff secretary from June 6, 2003 until May 30, 2006 who advised him on many subjects which presumably included federal judge appointments.  That advisor was future Supreme Court Justice, Brett Kavanaugh.   I say “presumably” because at the Senate judicial hearing whether to the appointment of Brett Kavanaugh as an associate justice, Judge Kavanaugh declined to answer Senate members questions on this subject, claiming the information was “privileged.”

We know that while Brett Kavanaugh was staff secretary in President Bush’s cabinet, on July 1, 2005 Associate Justice Sandra Day O’Connor announced her intention to retire.  DC Circuit Judge John Roberts was nominated as an associate justice to replace her, but when Chief Justice Rehnquist died on September 3, President Bush withdrew Judge Roberts’ nomination as an associate justice and resubmitted it as chief justice.  The judge that filled Justice O’Connor’s seat was Judge Samuel Alito.  Chief Justice Roberts, Justice Samuel Alito, and Justice Kavanaugh are all Catholic.  I bring this up now because I will expand on this in a later blog when we discuss precedence and the overturn of Roe v. Wade.

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Whether you believe the 2020 election was rigged, or not, it is important to acknowledge that there have been some irregularities in past elections.  Stacy Abrams exposed corruption when she ran for office in Georgia, and President Jimmy Carter exposed how the names of dead people were registered to vote when he was a politician.  These politicians brought to light the problem so it could be addressed.  They did not insist on being sworn in or refuse to leave office or encourage any violent means to disrupt our political process.

After the 2020 election, President Donald Trump had two months to collect his evidence to present to America what he believed was corrupt in the election. Two months before the Electoral College certified election results on January 6, 2021.  He claimed throughout his presidency that the system was rigged, yet he has never given concrete evidence of this.  Did he benefit from that corruption? He has not submitted anything that could be addressed and corrected. Contrast this with how Carter and Abrams exposed corruption.  Abrams and Carter improved the system.

From the founding of our federal government in 1789 until 2020, America had a peaceful transfer of power from president to president.  We can never again say we have ALWAYS had a peaceful transfer of power.  Let’s make sure the destructive disruption of January 6, 2021 remains in the past.

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FULL DISCLOSURE:

I worked as a freelance reporter for the Associated Press (AP) during the 2020 General Election.  The election team collected information from the polling sites.  As soon as polls closed, we reported the numbers throughout the night.  Following the election, we verified those numbers with each state.  The AP is very thorough.

The 2020 election was unusual because of COVID.  Emergency methods for voting were used in some states.  The question of whether mailed in ballots were legal came into question.  

I personally made follow-up calls to Pennsylvania and asked how they were handling the ballots that were mailed in.  I spoke with Pennsylvania’s Office of the Secretary of State.  They explained that all ballots arriving by mail were kept separate and not opened until all other ballots had been counted.  Candidate Joe Biden won the majority of votes in PA before any of the mailed in ballots were opened.  The ballots by mail did not make a difference in the outcome.  

States take their role in the election process very seriously.  They took extra precautions in 2020 to ensure their part in the process was correct.  That’s just how it is.