Visiting Column #55 -- Three Things that SCOTUS Will Have to Decide

Good morning, fair readers.

As I write this, it is mid-November, and the 2020 election is in hot dispute.  What is being disputed is, well actually, a number of things, all related to whether there was an epidemic of ballot-stuffing, ballot destroying, a lot of 135-year-olds voting (they all seemed to like Joe Biden), and some very curious banning of Republican poll-watchers from cities with corrupt election histories like, you know, Philadelphia.

I'm expecting that in the coming weeks, a lot of court cases will be heard, and ultimately, they will float up to the U.S. Supreme Court, which will have to make a few different findings and hand down a few different rulings.

While I don't know what those rulings will be, or even what cases they will hear, this particular column is meant to point out that the rulings will not be nearly as straightforward as those in Bush v. Gore, 2000, and they will have quite a bit more long-range impact.

There are three things that will have outcomes as far as this situation is concerned, and SCOTUS will have failed miserably if they don't execute on all three, to wit:

1. What happened?  This is a finding, in the sense that the Court will have to determine the facts of the cases.  I say "cases", because in different states, the Democrats did somewhat different things.  We don't know for sure (that's the Court's job to decide), but regardless, there have to be rulings of what the evidence showed happened in each of the contested states.  SCOTUS will find that X, Y and Z happened in Michigan, and X and Y happened in Pennsylvania, and maybe V and W in Arizona and, oh yeah, W, X and Y in Wisconsin and Georgia.  You get the idea.

So the first outcome is that the Court will make one ruling per state as to what it has found to have happened with the election.  Neither you nor I can tell you what that is going to be, because there are multiple legal teams pursuing this, some with no ties to the Trump campaign and others connected to it.  Some of them are being very close-hold with their evidence, lest the leftist media put forth their opposition to the public ahead of time.

Obviously, if the Court rules that nothing happened, or if maybe only one state played fast and loose with election laws, it's over and Biden will be sworn in on January 20th.  You don't need to read my column for that, so let's deal with the assumption that the Court finds multi-state problems took place.  Then we get to ...

2. What is the remedy?  So let's say that the Court finds that the elections in three states were corrupt, and the electoral count of those states is enough to swing the election to President Trump. Here's where SCOTUS becomes a real wild card, because I didn't attend enough law school (i.e., none) to know the answer to the $64,000 question -- what is the fix for this one, the 2020 election?

Obviously, there are multiple avenues of repair -- a replacement election, or the discarding of all successfully-contested ballots, or simply voiding the general election in that state and defaulting to the Constitutionally-mandated solution where the legislature of the state votes on the electors it will send to the Electoral College in December.  I honestly don't know, and those remedies could theoretically be different for what the Court orders each state to do, depending on all that X, Y and Z stuff I wrote above.

But the point is, that if the Court finds that the election was in any way corrupted, it has to order a specific solution; it can't pass the buck.  I do not know what that would be any more than I know what their finding would be, but I can tell you this -- the Court must, in that case, specifically mandate the immediate solution to tell the states how to determine what electors go to the College in December.  It cannot leave that to others.

I'll add this.  The left (meaning the Democrats and the media) will riot in the streets if that remedy does not go their way.  The Court -- and I'm serious -- must not care.  During her confirmation hearings, Justice Barrett pointed out that the Court should not be taking outcomes into account in making a Constitutionally-acceptable ruling, and this would be a good example.  They must rule properly, and provide a Constitutional remedy, and the remedy must be explicit so as to order how the electors for each state will be chosen.  And if the left (or the right) doesn't like the outcome, well, that's simply not relevant.

3. What is the future?  So whatever the Court finds, as long as something is found to be wrong, the nation can no longer trust its own electoral process.  And here is where the Court has to act decisively.  If there was corruption, in the eyes of the Court, then it owes it to the citizens (i.e., legal voters) of each affected state to do what it can to prevent that sort of thing from happening ever again.

Let's say that the Court finds that the prevention of Republican poll-watchers from overseeing the ballot counting in Philadelphia was felonious, and logically leads to the elimination of trust in the outcome.  It is incumbent on the Court to order penalties for those responsible, and it is equally incumbent on the Court to order the city and, assumedly, the commonwealth, to take affirmative, auditable steps so that such corruption can never recur.

Face it, my friends, right now we do not believe that the 2024 election will be on the up and up, and we certainly don't feel the 2020 election was.  The Supreme Court can not allow future elections to be subject to the same tortured doubts that we have about this one.

So if there was wrongdoing in 2020, then people need to be sent to prison, and systems need to be fixed.  Now.  Not two years from now, and certainly not four years from now.

The nine justices on the Supreme Court are going to have a very tough task in front of them, but they cannot finesse it, or do it halfway, or kick the can down the road.

They need to decide very specifically what happened. 

They need to order how to fix anything that went wrong so we have legitimate electors in December.

They need to punish the guilty and ensure that future elections can be trusted.

All three. This is their moment.

Copyright 2020 by Robert Sutton
Like what you read here? There are over 1,000 posts from Bob at www.uberthoughtsUSA.com, and after four years of writing a new one daily, he still posts thoughts once in a while as "visiting columns", no longer the "prolific essayist" he was through 2018, but still around. Appearance, advertising, sponsorship and interview inquiries cheerfully welcomed at bsutton@alum.mit.edu or on Twitter at @rmosutton