Last week, the Supreme Court of the United States refused to accept a lawsuit by the State of Texas against four “swing” states that Texas alleged violated election laws – laws enacted by their own state legislatures. Texas was joined in the suit by President Trump and seventeen other states. Justice Samuel Alito dissented in the court’s decision.
The reason for the court’s refusal was not based on anything to do with the charges. The court said that Texas had no right to be heard because the plaintiffs were not hurt by the election activities in the swing states. In legal terms, Texas, et. al. had “no standing,” no vested interest at stake. No standing is a convenient way for a court to avoid controversies and clear its docket.
Justice Alito, joined by Justice Clarence Thomas, believes that the Constitution and case law required the court to at least allow an airing of the suit. Even if the court gave Texas and Trump the bum’s rush, the nation would benefit by hearing about the defects in state election practices. No one except Alito and Thomas seems concerned about these defects impacting future elections.
Mail-in balloting and its growing popularity are at the heart of this year’s election disputes. Americans owe Justice Alito and Trump’s attorney Rudy Giuliani respectful attention. As dissenters in this contentious election, they have shined a light on questionable mail-in balloting. And, they have done so within the law – believe it or not. Nevertheless, the media accuses Giuliani of “destroying democracy” by challenging state elections. Was the Republic destroyed by those trying to unseat an “illegal” president for four years?
Those who forget the political agony this nation was put through since 2016 have “no standing” to complain about Giuliani or Alito messing up the country. The press has had a field day with denigrating legitimate challenges to state elections: “quixotic,” “spurious,” “ignoring the nation’s founding principles,” “assaulting public faith” in elections. These phrases came out of only two paragraphs of yesterday’s NYTimes front-page. Its editorial went so far as to accuse any Republican who questions state authorities during this pandemic of “placing lives in danger,” implying that election challenges affect vaccination rates. I have accused the media of being “unbalanced” in a partisan sense. Now, I wonder about their sanity.
The main trust of Giuliani’s and the Texas election challenges is that swing states violated both their own state constitutions, and that of the U.S., in that they by-passed state legislatures to change the rules on mail-in ballots. [Illegal mail-in ballots will surely destroy election integrity if courts continually excuse “irregularities”.] Even before the pandemic, governors and state attorneys general took shortcuts to avoid legislative approvals required by the Founding Fathers. Legislatures are at the heart of our Republic. The Founders knew their Roman history and structured our Republic on Rome’s. This is what they learned:
SPQR are the four letters every Roman child, and every Founding Father, knew by heart: Senatus PopulusQue Romanus (the “Senate and Roman People”). Unlike tiny Athens, which practiced direct democracy, democracy in Rome and Italy could only function with elected representatives: senators for patricians, assemblymen for the plebeians. The “people” in SPQR were the representatives of plebeians in the Tribal Assembly (who elected Tribunes with veto power), and the Centurial Assembly. It was the Assemblies that passed laws, not the Senate, not consuls, governors, or emperors. Our Founding Fathers placed this same trust in state legislatures, not governors or election boards. Election laws are just that: promulgated by legislatures, not by fiat.
When ancient Italy passed from a republic to an empire, these institutions were maintained to protect the citizenry. The pictured coin has Emperor Hadrian (AD 117-138) on its face and the letters SC on the reverse. SC stood for Senatus Consulta (“the Senate Consulted”) SPQR was not just an old slogan. Rome was a nation of laws, just as we are supposed to be.
The voices of Justice Alito and Rudy Giuliani may be denounced by some but they have the Founding Fathers as well as their Roman forebears behind them. -JLM
If the issues lies within the individual “Swing States” in question, then why don’t those states individually solicit the Supreme Court with their own petitions for the Court to hear them? What is the Problem here?
The problem is that those state courts have either refused to hear Republican complaints, told them they should have complained earlier, or declared any complaints as lacking evidence. Republicans in those states have gone to the Supreme Court, which didn’t want to overturn the state court decision. It all boils down to time – no court wants to screw up the transition schedule and possibly cause civil unrest.