If the election takes place, and it could very well, even though I have doubts, there will be a carload of lawsuits from the losers, blaming the fairness of elections taking place during a global pandemic where certain jurisdictions are under orders to stay home.
hawk, esq.
That just doesn’t matter.
I’m one of the handful of people that actually
read the legal opinions in the 2000 fiasco. A few things to note:
- The Constitution doesn’t even call for a a presidential election. Rather, it calls for states to send electors. While most states were having elections by the early 1800s, some legislatures continued to appoint the electors directly.
- For an interesting twist, it is the legislature, not the state government or law, in which this is invested. If a state legislature decided to appoint the electors, and the governor tried to veto, my guess is that the legislature’s choice prevails.
- As a consequence, the USSC sent one of the cases back to the Florida SC, with instructions that if it had ruled on the basis of state law, it was upheld, but if federal, overruled, as the issue was state law.
- Most of us were taught in high school civics that nowhere does the Constitution grant power to the states. This is simply wrong, as, at a minimum,
a) unrestrained authority to choose electors,
b) the repeal of prohibition granted granted carte blanche to the stats to regulate alcohol–even in ways that would otherwise violate the commerce clause or equal protection
- Congress, not the courts, has the jurisdiction to count the electoral votes and handle disputes (there have been cases in which competing delegations of electors were sent).
So, once Congress counts the winner, it’s over. No room for the courts. There can be
some court wrangling before the electoral college meets, but the USSC in 2000 deferred to the law, rather than making the choice (although it
did issue nine separate options!)
While I’m at it,
6. The operative vote in
Bush v. Gore was not 5-4, as widely reported, but 7-2. There were
two votes. 7-2 found that Florida could not do what Gore wanted (basically, that the rules couldn’t be changed after the fact). 5-4 was the vote to stop the counting, with 2 justices from the 7 wanting to allow it to continue. The order to stop was not a declaration of victory, but rather noting a deadline something like 26 hours away for states to make their submissions for a “safe harbor” position under which their delegates couldn’t be challenged. It was a recognition that it wasn’t conceivable that rules could be put in place for yet another count, the count conducted, and judicial review concluded by that deadline. The 4 said that the state was entitle to try. (disclosure: I would have been one of the 7 that joined the 4).
So, anyway, the election isn’t really a thing, and electors can be appointed in any event.