Briefly Noted: SWC Speculates Anew Re Alito's Date Change

Commenter Michael just pointed out to me a new article by Shipwreckedcrew. SWC attempts, again, to divine what might be behind Justice Alito's decision to move the date for Pennsylvania's reply forward by a day--thus ensuring (if this is, indeed, the reason) that the reply falls within the "Safe Harbor" deadline. In what follows I'll be quoting a Congressional Research Service report:

The Electoral College: A 2020 Presidential Election Timeline

Since SWC believes that Alito's decision is to considered within the context of the Safe Harbor provision, I'll first paste in the report's version of that provision. As you read, bear in mind that the date Alito originally set was December 9th. He then changed that date to December 8th at 9:00 am--thus providing the rest of the day for deliberation:

December 8, 2020: The “Safe Harbor” Deadline

The U.S. Code (3 U.S.C. §5) provides that if election results are contested in any state, and if the state, prior to election day, has enacted procedures to settle controversies or contests over electors and electoral votes, and if these procedures have been applied, and the results have been determined six days before the electors’ meetings, then these results are considered to be conclusive, and will apply in the counting of the electoral votes. This date, known as the “Safe Harbor” deadline, falls on December 8 in 2020. The governor of any state where there was a contest, and in which the contest was decided according to established state procedures, is required (3 U.S.C. §6) to send a certificate describing the form and manner by which the determination was made to the Archivist as soon as practicable

Here is SWC's speculation--and he's explicit that his proposal IS speculative:

... if the Court was to grant injunctive relief against Pennsylvania’s naming of electors, but only did so after December 8, the question occurs ... how the Court would respond if Pennsylvania went forward with reporting 20 votes in the Electoral College for Joe Biden on December 14, and forwarded that information to Congress for its proceedings on January 6, 2021?

The mechanics of the Electoral College are not widely known.  The electors from each state do not leave their state and go to any particular location in or around Washington DC to meet.  They gather at a location in their state — the State Capitol normally — and complete ... the necessary documentation to be delivered to Congress by the appropriate state official, normally the Governor [in PA, a Dem].

 

Note: SWC doesn't discuss how electors are selected in PA. PA has a winner takes all system in which the winner of the election gets all the electors. When the election is certified the party slate of the winner is certified, and then the governor forwards that slate to Congress in Joint Session. So it's important to determine ... the winner of the election! Unspoken by SWC is the notion that it's important for Alito to keep PA's controversy going, to avoid the Safe Harbor provision leading to certification. What Alito may fear above all is action by the PA Dem governor. Without that action (certification) the problem that SWC raises in the next paragraph should not arise:

On January 6, 2021, Congress meets in a Joint Session of the House and Senate and reads the certifications of the votes of the Electors received from each state.  There is a process for “objections” to be made and resolved.  But, if the Electors were named prior to December 8, it is possible that Congress would not entertain any “objections” because of the language of the “safe harbor” statute.

The question that may have arisen among the Justices is whether — if they acted after December 8 — they would be creating a scenario where the Governor of Pennsylvania will have timely complied with the “Safe Harbor” provision in naming the State’s Electors, and Congress, led by the Democrat-controlled House, would simply ignore the Supreme Court’s injunction issued against Pennsylvania if it came on December 9 or later, on the basis that federal law — 3 USC Sec. 5 —  had been complied with and dictated the outcome.  The Congress would have to choose between following the statute or respecting the Court’s decision, and with partisanship where it stands, the answer to that question is in serious doubt.

 

The contrary argument here is that the Safe Harbor provision doesn't bind the SCOTUS, doesn't prevent the SCOTUS from deciding a challenge to the election. That argument is almost certainly legally correct--BUT this is politics. Is it possible that the Dem House would poke the SCOTUS in the eye--throwing the entire election into chaos? Of course it is. And that would be what Alito wants to avoid. The way to avoid this problem is to act before the Dem governor of PA can name the Dem slate of electors--to maintain the election in a state of controversy so that Safe Harbor doesn't apply. If the SCOTUS weighs in tomorrow, then the results of the controversy cannot be plausibly considered to have been "conclusively" resolved.

 

This puts the Court in the position that it has historically sought to avoid — “ordering” actions of co-equal branches of government that it has little power to enforce, and thereby running the risk that its Order will be ignored and the institutional authority of the Court undermined as a result.

This is the problem I raised earlier.

 

It [avoiding issuing "orders" to co-equal branches of government that can't be enforced by the SCOTUS] is the BASIC principle that underlies the entire concept of “judicial review” established in Marbury v. Madison, where Chief Justice Marshall announced the principle that the decisions of the Executive were subject to review by the Court for their constitutionality, but in that particular case that Court determined that ordering the Executive to take corrective action was not needed, thereby avoiding the potential that Pres. Madison would simply ignore the Court.

That is the basic principle that John Marshall forgot about when he challenged President Jackson over Indian Removal. None of the current justices will have forgotten that lesson.

Normally the matter of objections to electors by the Joint Session is handled on a case by case basis--one elector at a time--but in this case the dispute would be over an entire slate of electors. If the Dem governor of PA is left in a position to choose the Dem slate before the SCOTUS acts--what could the SCOTUS do? Speak harshly to him? 

Here's the operative principle as I see it: The SCOTUS must not only be arguably in the right. It must act before the operative Safe Harbor date in order to avoid the argument entirely if it is to be seen by the country to be in the right. By the same token, by doing this, Alito and the SCOTUS will take the high ground of the law and place the Dem House in the position of having to justify itself or be seen to be acting lawlessly. But to place themselves in that favorable position, from which they can plausibly defend the country against a lawless and corrupt election, they must act before the Dem governor acts.

So, overall, SWC makes a good case. Although we may never know the truth of it.

ADDENDUM: I think what we're seeing is that there is at least a majority of five justices on the SCOTUS who are very concerned about the implications of allowing a fraudulent election to be certified. That is especially so given that the party that would "win" this fraudulent election is one that has been outspoken in its willingness to utterly transform our constitutional order--by whatever means work for them. Recall, that Pelosi has more than once asserted a primacy of the House over the rest of government. So, with all that in mind, the five justices may be resolved to act to the extent that they're able to do so. That's an important proviso because the deadlines are very short. But they will hopefully speak.