Special Report

Supreme Court History Provides Modern Day Answers

Let us look to our history to understand our present circumstance.  The Supreme Court decided a presidential election in 2000 which was far simpler than the modern day trial set before us.  The below quotes are all taken from the written opinions of that case.

The President is vested with the executive power of the nation. The importance of his election and the vital character of its relationship to and effect upon the welfare and safety of the whole people cannot be too strongly stated.” and “[I]n the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest. For the President and the Vice President of the United States are the only elected officials who represent all the voters in the Nation.”

The Supreme Court rebuked the argument that the constitution does not grant SCOTUS the right to hear the case simply because the constitution grants legislatures the right to direct electors.

“[e]ach State shall appoint, in such Manner as the Legislature thereof may direct,” electors for President and Vice President. (Emphasis added.) Thus, the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance.”

Now, look closely at the phrase “the election law itself.”  This is significant because the Supreme Court is saying that yes, states have a right to direct electors, but they do so as a result of election law. Therefore, that law is a significant part of the process.  

“A significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question.”

We see our first glimpse into why the current plaintiffs are filing for relief with the court.  The current plaintiffs are making the case that electors were chosen as a result of defendant states departing from their legislative schemes, and that presents a constitutional problem.

When citing other state-related election disputes that were decided by the Supreme Court, the justices stated:

“This inquiry does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures. To attach definitive weight to the pronouncement of a state court, when the very question at issue is whether the court has actually departed from the statutory meaning, would be to abdicate our responsibility to enforce the explicit requirements of Article II.”

The justices make the correct argument that state courts do not have arbitrary power over the state legislature.  The courts can only judge statutes and not create new ones to suit their desires which violate the separation of powers doctrine.

Texas claims that state executive actors and state courts altered the meaning of election laws that were established by the defendant’s state legislatures.  The justices spoke very clearly and directly about this abuse of powers.

“In order to determine whether a state court has infringed upon the legislature’s authority, we necessarily must examine the law of the State as it existed prior to the action of the court.”

“in a Presidential election the clearly expressed intent of the legislature must prevail.”

The justices are stating that legislature intent is where the authority to conduct an election comes from, and therefore, must be the standard by which each election is judged.

The justices then speak to Florida’s Supreme Court advocating remedies that took on legislative meaning outside of their constitutional authority.

“For the court to step away from this established practice, prescribed by the Secretary of State, the state official charged by the legislature with “responsibility to … [o]btain and maintain uniformity in the application, operation, and interpretation of the election laws, was to depart from the legislative scheme.”

“The scope and nature of the remedy ordered by the Florida Supreme Court jeopardizes the legislative wish.”

Now we turn our gaze to the unsigned majority opinion which holds significant value to the current Supreme Court case.

“The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.”

Follow this carefully because the justices are laying a foundation to understand why they ruled against Florida’s Supreme Court and rejected 170,000 Florida ballots.

“State legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution.”

“When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. “

The justices make it clear that legislatures have the right to determine how electors are appointed.  However, once the states grant the right of their citizens to vote for the president, then following state election law is paramount to the right of each voter being treated with equality in that process.

Now we come to a declaratory judgement protecting that right to equality.

“Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”

When discussing how various counties were adopting different rules to judge votes cast by their citizens the justices spoke up by citing a previous court case.

“[t]he idea that one group can be granted greater voting strength than another is hostile to the one man, one vote basis of our representative government.” 

Then the justices rebuked those calling for a hasty court transaction in resolving the dispute.

“The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees.”

The justices then make a declaratory judgement about which votes have the right to be included in the certification of the total vote count.

“In certifying election results, the votes eligible for inclusion in the certification are the votes meeting the properly established legal requirements.”

Therefore, let us summarize the arguments made during the Bush/Gore Supreme Court case and how they impact the current case:

  • State legislatures have the authority to direct their own electors.
  • Once the state vests power to direct electors to the citizen, then each citizen must have equality of access to the election’s process.
  • States must abide by the legislature’s intent of election law and that courts and state actors do not have the authority to alter those processes at will.
  • One county may not bestow upon themselves privileges that grant them greater voting strength so as to dilute the weight of the vote by the one man.
  • Only votes cast in a manner that is prescribed by law may be counted in the state’s certification of its election.

The justices end with another affirmation of separation of powers and spoke to why they believed it was their responsibility to adjudicate the dispute.

“None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution’s design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.”

Therefore, let us look at the highlights of current lawsuits across the nation in light of what we just learned.

  • State executive actors and state courts changed election processes outside of legislative authority regarding:
    • mail-in ballots
    • treatment of observers
    • ballot curing
    • dates and times of election events
    • certification of votes not cast according to prescribed law
    • voter rolls not kept according to state and federal laws
    • voting process changed based on voter status
  • Electors were appointed by an election process administered outside of the legislative intent of the state
  • Inclusion of ineligible voters which nullified the voter’s right to equality

The lawsuits in the courts today are very complex and difficult to explain. Therefore, I chose to focus on the constitutional parameters of these cases and not the individual complaints of fraud.  The purpose is to educate the reader in a manner that will help create context for all of the news content the reader may be digesting over the next couple of weeks.

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‘Overworked Supreme Court’ Vintage Painting
Keppler, Joseph Ferdinand, 1838-1894

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