I’ve been extremely fatigued the last few days. I don’t think I have coronavirus because I don’t have other symptoms, but it’s been hard for me to sustain the energy to follow the legal proceedings that have brought to a conclusion the judicial option for fighting the election result.
I did watch most of the Wisconsin Supreme Court oral argument on Saturday. There is no better example of why elections matter, and how the 2020 presidential election was lost months ago. Liberal Jill Karofsky defeated conservative sitting Justice Daniel Kelly in an April 2020 election the Wisconsin Republicans completely botched by allowing it to take place the same date as the Democratic presidential primary. Guess who turned out to vote? Democrats. That took the court down to a nominal 4-3 conservative majority, with Justice Brian Hagedorn the weak conservative link.
In many other states, legal and political battles were fought strategically by Democrats over the several months leading up to the election. Democrats organized for a mail-in election, Republicans didn’t. Republicans were out-organized, out-hustled, and out-lawyered.
Back to Wisconsin. Karofsky was known to be on the extreme end of the spectrum, and she demonstrated it during the oral argument, with obviously planned pronouncements from the bench that the challenges were racist, and that Trump was acting like a king. It was the most abysmal display I’ve ever seen in an appellate court oral argument. Karofsky has just started her 10-year term in office.
The court voted 4-3, in an opinion authored by Hagedorn, to deny Trump’s challenge to clearly defined categories of votes that allegedly were cast in violation of Wisconsin law based on misguidance by the Wisconsin election commission. The majority never analyzed the merits for most of the claims, it declared that it was too late, “laches” just like the Pennsylvania Supreme Court. Read the Opinion, of course, but also read the much lengthier, more detailed, and more persuasive dissent of Justice Patience Roggensack (starting at par. 61 of the pdf., page 13), which absolutely ripped to shreds the majority’s refusal to examine and apply the law.
I raise this issue because Wisconsin was the clearest case of one judicial problem Trump faced. The remedy was too much for any court to grant. As I cautioned many times, no court was going to disallow thousands (and in some cases millions, such as PA) of votes which technically may have been unlawful, but were cast by people who thought they were voting lawfully and who were following the procedures of election authorities. That was a reality check that not enough people offered. In his opinion, Justice Hagedorn wrote of a challenge to the form of voter application:
Waiting until after an election to challenge the sufficiency of a form application in use statewide for at least a decade is plainly unreasonable.
Technical arguments, while possibly legally correct, were not going to, and did not, persuade a majority of any appellate court to grant the relief sought.
Separate from the technical challenges, the presentation of actual fraud claims has been haphazard and disjointed. Unlike the Democrats, who were highly organized legally, Republicans had different lawyers filing different claims without any apparent coordination, sometimes in the same state. Legislative hearings are not court.
A big part of the problem was the truncated electoral college timetable. As I mentioned with regard to Nevada, trial court judges expected Trump or his proxies to come into court with conclusive evidence of fraud at the get-go, while eschewing the normal documentary and testimonial discovery process that would take months or years. I think it’s fair to say Trump never got his evidentiary day in court because of this truncated process, but it’s also fair to say that the law requires that election disputes — particularly presidential disputes — be resolved quickly and that only definitive proof of fraud affecting the result gets you past go.
Also, let’s face it, there were many high-profile lawyers who didn’t deliver on their promises of definitive proof. Broad conspiracy theories which might be true were not proof. Even Trump-appointed federal judges could not be convinced.
As to the Supreme Court, the unanimous decision was to deny Texas any relief (7 Justices voted against even allowing the filing, Alito and Thomas would have allowed the filing but denied relief). Alito and Thomas are the two most consistent constitutional conservatives on the court, if they say Texas had no legal case, then it’s hard to argue against.
All that said, I don’t blame people for fighting these legal fights. I said all along, and stand by it, that we should let the legal cases play themselves out. There is a strong sense that something went very wrong here; tens of millions of people have that sense. I certainly do.
The court proceedings and legislative hearings have exposed a lot of problems with the election. Shining a light on the threat of mail-in voting and election practices was a public service, and should serve as a warning for 2022 and 2024.
Today electors appointed by states around the country cast their votes for Biden-Harris in an amount enough to elect them. I’ve looked at two Congressional Research Service Reports, one from 2020 and one from 2016, explaining the process for counting and contesting electors at a Joint Session of Congress. The bottom line is that even if you think contesting electors at a Joint Session of Congress is a good thing, it’s not going to happen here because both chambers would have to concur. There is zero chance the Democrat-controlled House would vote to disallow Biden-Harris electors.
So the nomination of alternative electors, and the vow to contest the electors on January 6, is a dead end. It’s a dead end that could have serious consequences if it causes Democrats to win both Senate runoff elections in Georgia on January 5. That would put the Senate (along with the House) in Democrat hands with a Democrat president, and a power-hungry Obama-third term (at best) crew in charge.
It also distracts from a necessary organization of a resistence to the radical Democrat agenda, a resistence that needs to be organized now. The merging of the Democratic Party and the high tech oligarchs who control the flow of information is one of the most serious threats non-liberals have faced politically. They will hit the ground running. Will we?
Previously I have likened the current situation to the time period after Obama’s election, when the Obama juggernaut seemed unstoppable. The rise of the Tea Party movement in opposition changed the course of history. It didn’t stop the Obama agenda in its entirety, and was undermined by establishment Republicans, but it did change the trajectory dramatically. It can happen again, but only if people don’t engage in futile and useless gestures in the next few weeks instead of organizing.
So that’s were I see things at this hour. Now I’m going back to get some rest.DONATE
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