Wednesday, November 11, 2020

SWC's Important Article On Pennsylvania And The SCOTUS

There appears to be some misunderstanding regarding the possible scope of the Pennsylvania case that is before the SCOTUS. In

The Revenge of Clarence Thomas -- Bush v. Gore and the Facts Underlying The Pennsylvania Court Cases

Shipwreckedcrew does an admirable job of setting the record straight in that regard. You can read the whole Who-Struck-John of the case by following the link--and I encourage you to do so. The election likely hinges on Pennsylvania, so it's important to firmly grasp the issues. Here, I'll skip most of the factual basis in Bush v. Gore, referring readers to SWC. Instead, I'll try to offer a brief summary that highlights the two issues involved.

Yes, there are TWO issues. Most readers will be familiar with one of the issues--the question of whether the PA Supreme Court acted unconstitutionally in changing PA's election law--but there's a related issue we need to be aware of. Both the issues cropped up in Bush v. Gore in Florida.

In his presentation SWC leaves the more familiar issue to the end, but I'll put it up front. 

That issue is, in the context of Bush v. Gore, referred to as the "Article II" issue. The reason is because Article of the US Constitution gives state legislature's the authority to determine the time and manner for holding presidential elections. Here's the Wikipedia summary:

Bush also argued that the Florida Supreme Court's ruling violated Article II, § 1, cl. 2 of the U.S. Constitution. Essentially, Bush argued that the Florida Supreme Court's interpretation of Florida law was so erroneous that its ruling had the effect of making new law. Since this "new law" had not been directed by the Florida legislature, it violated Article II. Bush argued that Article II gives the federal judiciary the power to interpret state election law in presidential elections to ensure that the intent of the state legislature is followed.

So what CJ Rehnquist argued was this: Normally the SCOTUS wouldn't interfere with a state supreme court's interpretation of its own state laws. However, in the case of a presidential election the state's authority to determine the manner of the election is granted by the US Constitution. Therefore, the federal courts are have the authority to review the state courts' interpretations of those state laws, because they derive from the US Constitution and implicate federal interests. In Bush v. Gore, Rehnquist argued that the Florida supreme court's interpretation was so drastic as to amount to a rewrite of Florida law--and that's exactly what Trump is arguing happened in Pennsylvania.

SWC believes that Trump has an excellent chance of prevailing:

The left-wing legal pundits have long treated the Rehnquist concurrence dismissively because only two of the other eight members of the Court joined the Chief Justice in his “textualist” approach to the meaning of “legislature” in Cl.2.  On that same basis, they are treating the Petition to invalidate the Pennsylvania Supreme Court’s order that extended the ballot-receipt deadline — which raises the argument made by Chief Justice Rehnquist in concurrence — with similar dismissiveness.  ...

But, what is important to know now is that Justice Thomas was one of the two Justices who joined Chief Justice Rehnquist’s concurrence.  Further, the “textualist” view of Constitutional law has gained much ground in the judiciary since 2000.  Justices Gorsuch and Barrett are clearly “textualists” in their approach to statutory and constitutional interpretation, and while not quite as clearly defined, Justice Kavanaugh has already written that he has significant issues with what the Pennsylvania Supreme Court did.

If Chief Justice Roberts lines up with the three liberals, and there is a 5-4 vote to overturn the Pennsylvania Supreme Court’s decision, the senior Justice in the majority determines who writes the Court’s Opinion. That would be Justice Thomas, and it is my prediction that in that event he would choose to write the opinion himself.

Some have argued that, since the main provision of the PA court's rewrite was an extension of the time period for accepting mail-in ballots beyond the deadline specified by the legislature, only about 10,000 ballots would be affected. However, the second issue potentially goes far beyond that.

The second issue flows from the Article II issue. This issue is one of Equal Protection under the US Constitution. Trump is arguing that Pennsylvania, by ignoring several very clear provisions of Pennsylvania law, has set up a two tier system that privileges some voters over others--in other words, all voters do not receive equal protection under the PA court's version of the law.

Now, in Bush v. Gore, what happened was that the Florida Supreme Court had ordered a state-wide recount. The problem with that, according to Bush, was that there was no state-wide standard for conducting such a recount:

Bush argued that recounts in Florida violated the Equal Protection Clause because Florida did not have a statewide vote recount standard. Each county was on its own to determine whether a given ballot was an acceptable one. Two voters could have marked their ballots in an identical manner, but the ballot in one county would be counted while the ballot in a different county would be rejected, because of the conflicting manual recount standards.

The result would be that voters in counties with a lenient standard for hand recounts would be "more equal" or privileged as compared to voters in counties with a stricter standard. So, a violation of the equal protection clause of the US Constitution.

The situation in Pennsylvania is a bit different, in that the classes of voters receiving disparate treatment is not based on geography--different standards in different counties. Instead, Trump is arguing that Pennsylvania has unconstitutionally set up two distinct and state-wide classes of voters, with each class receiving disparate treatment: Mail-in voters v. In Person voters. For various reasons--reasons that go beyond the three day extension--Trump is arguing that Mail-in voters are being privileged over In Person voters, in violation of the Equal Protection clause. And this has been done by disregarding the election law that was put in place by the PA legislature. It doesn't take much reflection to realize that this Equal Protection argument could have a far broader reach than the extra three days allowed for voting. 

SWC's conclusion regarding the Equal Protection issue?

Contrary to the left-wing pundits, this action has a substantial likelihood of being favorably resolved in favor of the Trump campaign.

Brace yourselves!


  1. IDK... i'd like to buy into this and want this to become relevant and make a difference to help Trump, but seems lately SWC is like 0 for 9 on his prognostications becoming reality.

  2. So the first question is what would be the remedy in PA? Throw out the mail in votes? Second question, if they ruled this violated the equal protection clause in PA, wouldn't it also violate the equal protection clause in any state with similar mail in voting procedures?

    1. Not necessarily throw them out as a class but subject them to stricter scrutiny in accordance with PA law--not ad hoc leniency by the vote counters.

    2. Why couldn't an equal protection clause argument be applied, to the all-bit simultaneous stopping of vote counting, *only* in Dem-run swing states?

    3. Typo: "the all-BUT simultaneous".

  3. After how Biden treated Justice Thomas at his confirmation hearings, wouldn't it be marvelous for Thomas to pen the ruling that ends Biden's political career. Beijing Biden should well understand that revenge is a dish best served cold!

    1. "If Chief Justice Roberts lines up with the three liberals, and there is a 5-4 vote...."
      I see no reference to Alito.
      Why wouldn't he make it 6-3?

    2. Simple - 3 liberals plus 1 McCain liberal = 4 liberals to 5 conservatives (including Alito), For a 6 -3 split Roberts would have to vote with the conservatives, which he did not in round 1 of PA cases.

  4. Americans have already spoken. They already had elections for their 50 state legislatures. Those elections were far more trustworthy than this ongoing fiasco.
    Among those 50 elections, in 29 states Republicans were chosen to control both houses of the Legislatures, totaling 285 electoral votes. Good enough for me.

    Texas 38
    Florida 29
    Pennsylvania 20
    Ohio 18
    Georgia 16
    North Carolina 15
    Arizona 11
    Tennessee 11
    Indiana 11
    Wisconsin 10
    Missouri 10
    South Carolina 9
    Alabama 9
    Louisiana 8
    Kentucky 8
    Oklahoma 7
    Mississippi 6
    Iowa 6
    Utah 6
    Kansas 6
    Arkansas 6
    Nebraska 5
    West Virginia 5
    Idaho 4
    Montana 3
    Wyoming 3
    South Dakota 3
    North Dakota 3

  5. The hill for Trump is long and steep at this point. Here is what has to go right from this point forward:

    (1) Trump has to win Arizona, either when this first count finishes or on the sure recount;

    (2) Trump has to win Georgia on the recount. Right now, Trump has the best he could hope for in Georgia- a full recanvass and audit along with a hand recount;

    (3) Trump has to win the Pennsylvania suit and all the late ballots tossed out- then, if necessary, he needs to win the recount, preferably one done by hand, too;

    That is the minimum that he needs. At this point, I really think Trump's people need to find that miracle story where the Democrats really did use the computers to change the vote totals. I for one find that story almost beyond belief- it would imply the Democrats got so desperate last Tuesday evening that they cheated in a way that will be uncovered the instant someone hands counts the votes in more than two questionable counties.

    That is just the way I see it right now- hoping for a miracle.

    1. Yancey I think rather than contemplating the "long hill" you should ponder the likelihood that the Democrat who finished 4th (I believe) in the Iowa Caucus as voted by DEMOCRAT voters somehow managed to excite DEMOCRATS and REPUBLICANS to vote for him in RECORD NUMBERS no DEMOCRAT, including Obama has ever achieved EVEN when his opponent, the INCUMBENT president drew more votes than any Republican candidate ever. And where did this world historical dynamo of a presidential candidate garner all of these excess votes in these contested swing states? A lot of RED districts! And no digital foul play? Hmmmmm. Motivation? Durham, Hunter's laptop. One could go on.

    2. That's pretty much where I am, too. I've been reading the people explaining why this supposedly happened and still don't get it. Waukesha County is one of the quintessential GOP counties in the entire country. What is claimed to have happened there really makes no sense that I can discern. It doesn't add up.

    3. To the above should be added, the all-but simultaneous stopping of vote counting, only in Dem-run swing states.

    4. Agreed. There doesn't seem to be any explanations for that except fraudulent ones.

    5. I know, and where are the stories retailing all of the local dynamics the conditions on the ground, and exit polling from these historic showings, really get it straight from the voters, why are we not treated to the laudatory expose on the inner workings of the miracle campaign? Why in response to Trump's legal challenges do we not get simple positive heart-warming think pieces on why it is Joe did so well in Waukesha County or gee Fox News take any other "bellweather" county and really dig in and give us the amazing story if voter attitudes that gives the lie to Trump's claims. We're all dying to hear it.

    6. The difficulty is that no explanation is necessary. Clear, hard, unequivocal proof of fraud or manipulation will be required to stop the Constitutional wheel from grinding grist.

      This is about power, and the Dem's masters are determined to have it. If they gain it, by fair means or foul, they will never relinquish it. This is our October 1917. The Red October Revolution began the 7th of November in the Gregorian calendar.
      Tom S.

    7. Great point, Mark. It's just not adding up. With all the Trump hate the MSM has been retailing 24/7 for 4 years, why no conversion stories, Red to Blue because can't stand Orange Man?

    8. Kudos for being aware of standard leftwing media behavior, and noticing its absence.

      The odd behavior of the dog in the night.

    9. I guess I am working on the assumption that the ballots tabulated exist- full stop. That might still be the result of a fraud, but it is a massive and physical fraud if it is what put Biden over the top in those states. Like I wrote in the head comment in this thread- if this was done electronically, it is bound to fail in the end- that seems an awfully stupid method of cheating to me.

    10. Tucker Carlson: Yes, dead people voted in this election and Democrats helped make it happen

    11. Yancey, stipulated. My point is that they DID do significant parts of it electronically and were only planning on doing a tiny bit that way, maybe to bump certain races above recount status, but Trump Drew 10 million more voters than last time so oops, had to tweak a wee bit extra AND stop the counting and go out and gather more ballots. Simple move would be an audit of the counting process itself to locate all the inexplicable pauses in counting and check against ballot counting that occurs after the counting starts again

    12. Yes, I was thinking along those lines as well. Especially with the large numbers of Biden-only ballots. To me these factors point toward fraudsters having to scramble toward the end--shutdowns in swing states would mark the realization that the original strategy wasn't working as planned.

    13. Florida is a good example: Trump gained an enormous number of votes in blue counties while Biden gained substantial votes in red counties. That is absurd.

      Add that to the shutdowns and late-arriving Biden-only votes, and the scenario being argued really does make sense: the Dem strategy was to fractionally siphon a small percentage of votes (electronically switching or deducting Trump votes) in small enough numbers to evade notice. When Trump's margins were greater than anticipated they had to pause, re-calibrate, and revert to ballot stuffing.

      Frankly, they should be recounting all congressional races, too. It wouldn't surprise me if the Republicans actually won the House.

  6. Apparently, “ Ron “ has the Dominion manual and is getting more documents...

    “ 6. Dominion is a black box with votes ultimately tabulated in a central server system. Who has access to the central server and where is the manual and security reviews of that server software?

    7. Settings could theoretically have been changed during evening downtime on first night of voting. Much easier to change settings on hundreds of machines than to forge thousands of ballots. A couple of people could have done it quickly.”

    1. Very interesting. Sure raises questions. "Potential for abuse is high," as he says. The idea of such a system being administered in non-uniform ways ...

    2. Very interesting. What about third party hacks. Some bad actors (think CCP) hacking the data?

  7. I'm sure once you're committing election fraud it's "in for a penny in for a pound". Hopefully there are goods to be gotten from the digital record.