This morning Margot Cleveland combines a close analysis of the SCOTUS anti-order in the Texas Election Hoax case with a bit of Big Picture perspective. The entire article is worth reading, but as usual I'll excerpt some particularly telling passages:
The Supreme Court’s Rejection Of Texas’s Election Lawsuit Failed The Constitution
It is hard to believe the justices put the constitutional question above their desire to avoid appearing to meddle in the 2020 election.
Cleveland's basic critique of the brief anti-order is that it amounted to a straw man argument--which is why I refer to it as an "anti-order." Most of the justices are intelligent people, so we are entitled to presume that they read and understood what Texas had to say in its complaint and supporting brief. That the SCOTUS' anti-order instead chose to present a caricature of what Texas was saying--what Cleveland refers to as their "framing" of the issue"--speaks to the real motivation behind the anti-order: to sidestep (my word) the tough issues presented by an Election Hoax, especially one of this magnitude.
In what I take to be the meat of Cleveland's argument, she first presents the key to the anti-order:
In Friday’s order, the Supreme Court, without elaboration, held that “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections,” and thus concluded the Lone Star State lacked Article III standing.
Since Cleveland is too polite to say this, I'll say it: This is a completely dishonest characterization of Texas' complaint--it's a caricature of it. Of course Texas understood that the US Constitution--in the Elector Clause--allows each State to to choose "the manner in which another State conducts its elections”, nor did Texas pretend to have a right to meddle in other State's affairs in that regard. The problem with this characterization is that the US Constitution--in granting this power to the States--does also specify which State institutions will decide that manner of holding its elections: That authority is specifically granted to the legislatures the authority to decide how Presidential Electors are to be selected. Not to the governor or lower State officials, not to State courts. One of Texas' key claims was precisely that the States named in its suit had violated the US Constitution because State actors other than the legislatures had intervened in this process in key ways. Texas was not objecting to the "manner of conducting elections" as laid down by the State legislatures--in accordance with the Constitutional mandate--but to the unconstitutional interference of actors other than those specified in the Constitution. The SCOTUS anti-order knowingly mischaracterized this issue, muddying the waters intentionally--in order to lend a veneer of plausibility to their bare assertion that Texas lacked standing. To have written a full opinion on the substance of Texas' claim would have exposed the dishonesty and the true motives, so the Roberts majority used the anti-order summary denial of leave to file a complaint as a subterfuge to conceal their true motives (the Alito/Thomas "Statement", by referring to "other issue[s]" hints at what's going on).
Now, with that in mind, read carefully what Cleveland writes next--you'll see that it's basically what I've just written. When she says the SCOTUS was "correct" that Texas lacked a "judicially cognizable interest" what she's actually saying is this: The SCOTUS was "correct" only if you accept their dishonest characterization of Texas' "true complaint." The SCOTUS has presented the nation with a straw man, a caricature of what was truly at issue--not the manner in which States conduct elections, but the unconstitutional interference of non-legislative actors, in direct violation of the Elector Clause:
The justices were correct that Texas lacks an “judicially cognizable interest in the manner in which another State conducts its elections,” but it was the framing of the issue that made the answer self-evident: The court’s abbreviated decision failed to address Texas’s true complaint—that Pennsylvania, Michigan, Wisconsin, and Georgia violated the Equal Protection, Due Process, and Elector’s Clauses of the Constitution, and in doing so harmed Texas as a state.
Of course, because the justices had Texas’s bill of complaint, by declining to exercise jurisdiction over the case, the seven justices all concluded that the facts Texas alleged were insufficient to confer standing. (The same cannot be said for Alito and Thomas, who expressed no opinion on standing, the court’s framing of the issue, or the merits of Texas’s claims.)
But by failing to mention Texas’s constitutional claims, and by not providing any reasoning for its decision—omissions likely needed for the court to maintain its near-unanimous agreement—the Supreme Court created the appearance that it does not care about constitutional violations. When the question of standing is considered against Texas’s allegations of violations of the Elector’s Clause, it is hard to believe the court does. Or, rather, given their refusal to address Texas’s Elector’s Clause claim, it is hard to believe the justices put the constitutional question above their desire to avoid appearing to meddle in the 2020 election.
Here, I understand where Cleveland is coming from, but I think there's a more precise way to describe what the SCOTUS was up to, with their straw man anti-order. Certainly they didn't want to create "the appearance that it does not care about constitutional violations." That wasn't their intention at all. What they wanted to do was to pull the wool over the nation's eyes by creating the appearance--if that were possible--that there simply were no Constitutional issues presented by Texas. In that, as Cleveland notes, the SCOTUS' anti-order was a miserable failure--they fooled no one. The nation--both Left and Right--knows that they backed down from their sworn duty.
From there Cleveland focus' on the nature of the "true" issues that the SCOTUS inadroitly attempted to sidestep:
Texas’s Elector’s Clause claim, however, required more: It required the court to accept the complaint and address, in detail, the merits of Texas’s claim, because Texas was not merely challenging the manner of the other states’ elections.
Texas’s complaint and briefs then detailed the various extra-legislative modification or violations of the legislatively established election mandates. ...
And then, very succinctly, Cleveland shifts to the Big Picture. Texas' complaint wasn't, in the "true" sense, simply about a "technical" violation of the Elector Clause. It was about the compact that all the States entered into when they entered the Union. In Constitutional terms it doesn't get much more Big Picture than that:
Why was that not enough for the Supreme Court? What was lacking? The justices said standing—“a judicially cognizable interest”—but how can the state of Texas not have a judicially cognizable interest in her sister states living up to the compact they entered when they entered the Union?
Texas attempted in its briefs to crystalize the harm ... But a simpler and stronger argument came in a brief submitted by would-be amicus curiae Citizen’s United:
When one state allows the Manner in which Presidential Electors be chosen to be determined by anyone other than the state legislature, that state acts in breach of the presuppositions on which the Union is based. Each state is not isolated from the rest—rather, all states are interdependent. Our nation’s operational principle is E pluribus unum. Each state has a duty to other states to abide by this and other reciprocal obligations built into Constitution. While defendant states may view this suit as an infringement of its sovereignty, it is not, as the defendant states surrendered their sovereignty when they agreed to abide by Article II, § 1. Each state depends on other states to adhere to minimum constitutional standards in areas where it ceded its sovereignty to the union—and if those standards are not met, then the responsibility to enforce those standards falls to this Court.
On Friday, the Supreme Court voted not to enforce those standards.
There might be a satisfactory answer, but Americans have yet to hear it. And that was wrong, both for the court and the country.
Or to put it more strongly, by voting not to enforce the very standards on which our Union is based, the SCOTUS delegitimized itself as a Constitutional institution. Once you've done that, how do you get your legitimacy back? The SCOTUS has been wrong before--usually by overreaching--but this time it backed down from upholding the most basic principles of our constitutional order. They have forfeited any presumption of integrity or trust.
So much for Dems shrieks and claims that the Trump-selected Justices were simply going to be mouthpieces for Trump.ReplyDelete
Right. Mostly just your garden variety Republicans.Delete
surprise surprise surprise
To me what's especially damning is the missing logs. That's evidence destroyed.Delete
It didn't happen by accident.Delete
Here is the actual full text (pdf)Delete
Pretty damning stuff! How can you certify these numbers, when you cannot duplicate any count twice??
From the report:Delete
"Democracy Suite Admin Passwords are reused and share passwords."
"The Democracy Suite Software user account logins and passwords are stored in the unsecured database tables and the multiple Election System Administrator accounts share the same password, which means that there are no audit trails for vote changes, deletions, blank ballot voting, or batch vote alterations or adjudication."
This makes the 68% error rate look pretty good...
Anyone who remembers the "birther" controversy knows how often courts resorted to "lack of standing" to avoid an uncomfortable issue. It is intellectually dishonest to use a restrictive view of standing borrowed from private tort and contract actions for non-commercial cases affecting the general public interest. As US citizens (and states), we should all have "standing."ReplyDelete
As James DeLong said yesterday:Delete
No coherent law of standing exists, and the doctrine can, without undue cynicism, be seen as a tool by which politicized judges play favorites.
Robert Barnes says that his studies of 'standing' forced him to conclude that as a doctrine it cannot be taken seriously. Furthermore, Barnes says that when he hears any lawyer taking standing seriously, that lawyer cannot be taken seriously. By extension, SCOTUS can no longer be taken seriously.Delete
I couldn’t agree more. Not a lawyer, I could not understand the SCOTUS's throwing up that standing roadblock. It made no sense in this case.Delete
Strong language in the forensic audit:Delete
A company that carried out a forensic audit of 22 Dominion Voting Systems in a small Michigan County this month, in a report on Monday, suggested that President Donald Trump take steps to ensure U.S. national security via a 2018 executive order on foreign interference after asserting that the Dominion machines are “intentionally and purposefully designed with inherent errors.”
“We conclude that the Dominion Voting System is intentionally and purposefully designed with inherent errors to create systemic fraud and influence election results,” read a report (pdf) from Allied Security Operations Group released on a website belonging to Matthew DePerno, a local lawyer representing a plaintiff involved in the case. “The system intentionally generates an enormously high number of ballot errors. The electronic ballots are then transferred for adjudication. The intentional errors lead to bulk adjudication of ballots with no oversight, no transparency, and no audit trail. This leads to voter or election fraud.”
"No coherent law of standing exists, and the doctrine can, without undue cynicism, be seen as a tool by which politicized judges play favorites."Delete
IANAL and was not aware of this; can we impeach the Supreme Court for cowardice in the face of the enemy?
"It is intellectually dishonest to use a restrictive view of standing borrowed from private tort and contract actions for non-commercial cases affecting the general public interest."Delete
Same would apply to laches. Didn't the Penn Supremee Court once once rule laches does not apply to a constitutional issue?
Yes, someone went in and cleaned up. Its damming.ReplyDelete
Can we finally agree that we've had enough Federalist Society Supreme Court justices? Their support for 2A and religious freedom does not make up for their deep state / globalist kowtowing to big business, Big Tech, and open borders. ACB, Kavanaugh, and Tranny Man Gorsuch are dead to me.ReplyDelete
His 'friends' on the Left tried to destroy him, his family, his career, and his reputation. Literally everything he has.
And no matter how he kisses up to them, they will do it again.
Where you write "speaks to the real motivation behind the anti-hard:", I'll bet that you meant "behind the anti-ORDER:".ReplyDelete
As to the substance of the issues at hand, "Standing" appears to be, a doctrine *not* developed *until* the 20th Century.
According to https://en.wikipedia.org/wiki/Standing_(law)#United_States :
"legal standing truly rests its *first* prudential origins in Fairchild v. Hughes, (1922) which was authored by Justice Brandeis....
Prior to it, the doctrine was that *all* persons had a right, to pursue a private prosecution of a public right."
That is to say, before 1922, courts dared *not* play "standing" games, in order to duck cases they didn't like.
I was thinking ahead a few words to whether I should say "hard issues" or "tough issues." TxDelete
Your daily post grammar error checks are a worth up voting. The attention to detail is astounding and "I bet you meant" to me is hysterical.
I commend the developed kindness in correction, it's a talent.
Not really. The Taney court attempted to settle the slavery issue judicially using a great deal of cherry-picked historical anecdotes to demonstrate that the Founders intentionally and permanently excluded blacks from citizenship; ergo Dredd Scott could not sue for his freedom, i.e. he didn't have, could never have, "standing". They didn't use the word but that was the clear meaning. Hence the first sentence of the 14th A. Judicial activism is nothing new.Delete
Funny how environmentalist and even Dred Scott have standing, but Texas doesn't?Delete
devilman, thanx for the encouragement, I can hardly be really sure that I've struck the best tone, esp. when addressing those to whom I very much mean respect.Delete
You and Tschifty both add much to this board, esp. in your exchanges on the rewards & risks, of resort to dramatic steps like the Insurrection Act.
"The SCOTUS has been wrong before--usually by overreaching--but this time it backed down from upholding the most basic principles of our constitutional order. They have forfeited any presumption of integrity or trust."ReplyDelete
Well, Mark, this pretty much sums up our entire, rotten system. Not just the SC, we have seen all federal courts, agencies, Congress, and past presidents act with such naked lawlessness that their credibility is virtually nil.
What then? How is this any different than 1775? We find ourselves ruled (and i use that term decidedly) by a despotism that doesn't answer to laws or Constitution, that has robbed us of our very franchise to ever voice our dissent. If this war against We The People cannot be overcome then the Declaration of independence points us to the right of all citizens to dissolve the current bands and form one better suited to our God given rights.
Sorry OT but huge news... Dominion audit results out of Michigan case and it's doesn't look good for them!!!ReplyDelete
and the dots will be connected to foreign actors...Delete
Whether this report from Michigan is "huge news" or not remains to be seen. How many times have conservatives clucked and crowed over some 'bombshell' only to see it dismissed, ignored, or memory holed? The importance will be shown by whether it actually has an *effect.* Results count. Action counts. Same with the news out of the Wisconsin Supreme Court that potentially hundreds of thousands of ballots from indefinitely confined people shouldn't have been counted. More than enough to give Trump Wisconsin. Except, oh that's right, this little thing called the electoral college is *today* and no indication that the court issued any stay on the electors voting for Biden until the number of illegal ballots can be determined, so, yeah, big news alright.Delete
I think the judiciary branch has been telling the same enough by now. It's up to the Executive branch to uphold the Constitution and rule of law. They can do no further. It's Trump’s turn.Delete
"and the dots will be connected to foreign actors..."Delete
...and from the report:
"Dominion voting system is a Canadian owned company with global subsidiaries. It is owned by Staple Street Capital which is in turn owned by UBS Securities LLC, of which 3 out of their 7 board members are Chinese nationals. The Dominion software is licensed from Smartmatic which is a Venezuelan owned and controlled company. Dominion Server locations have been determined to be in Serbia, Canada, the US, Spain and Germany."
Another report on Antrim County [MI]:ReplyDelete
Dominion Software Intentionally Designed to Influence Election Results: Forensics Report
A forensic audit of Dominion Voting Systems machines and software in Michigan showed that they were designed to create fraud and influence election results, a data firm said Monday.
“We conclude that the Dominion Voting System is intentionally and purposefully designed with inherent errors to create systemic fraud and influence election results,” Russell Ramsland Jr., co-founder of Allied Security Operations Group, said in a preliminary report.
“The system intentionally generates an enormously high number of ballot errors. The electronic ballots are then transferred for adjudication. The intentional errors lead to bulk adjudication of ballots with no oversight, no transparency, and no audit trail. This leads to voter or election fraud. Based on our study, we conclude that The Dominion Voting System should not be used in Michigan. We further conclude that the results of Antrim County should not have been certified,” he added.
Sorry for reposting the same linking info PubliusFlavius had already put up, I jumped the shark.ReplyDelete
On the court(s)
I'll go back to what I said the other day. These courts are completely terrified of what the results would be of actually getting into any of the evidence in this.
The USSC is particularly terrified of having a pissed off left, or what they will push the right into if they look at the merits and refuse to act. If they do nothing the right still going to get up and go to work, pay taxes and issue strongly worded letters.
I am waiting to see how they respond to Powell's cases because they will have to play the "10 way to Sunday" game on dismissal bases on standing. Especially with the release of the Antrim County data analysis showing about 80% of her claims holding true. The other 20% falls to deleted logs... And that says even more!
I am blown away by the accuracy of the claims vs the actual evidence. As Mark had said previously, a good attorney asks for the moon and when they don't get it they scream fraud. In this case she apparently already had the moon!!
Sidney Powell has earned my complete trust.Delete
The SCOTUS has failed us. With such ignoring of the Constitution, there is no need for the Democrats to pack the court. The court already belongs to them.ReplyDelete
I am ashamed of the SCOTUS and its gutless actions.
Report of Roberts overheard shouting “Do you want Trump to win???” during deliberations makes total sense.Delete
Makes sense, but it's unsourced.Delete
The plain truth, it seems to me, is that Texas had the following interests in seeing that other states followed the Constitution rather than having everybody and their Aunt Tillie change election laws and procedures to facilitate FRAUD:ReplyDelete
1. These manipulations of the rules will spread to other states and bring ever more corrupt elections. Ditto for the brazen ballot stuffing we saw. If you can stuff those fake ballots into the machine, you're home free! Just ask SCOTUS!
2. The Dems' STEALING of this election by illegally changing the rules will have PROFOUND policy implications: Amnesty for 20+ million illegal aliens, an open border with 1 million+ "refugees" "welcomed" every year, drastically changed energy policy as oil and gas operations opened up by Trump are closed, AND MORE. This is not what we voted for, but it is what we will get because our votes were nullified by FRAUD in other states.
I don't have a law degree, but there must be some way to apply these concepts to the law and this case! SCOTUS needed to draw a line against this manipulation of the rules and the shocking lawlessness of the election workers. They refused to do so. We will all suffer greatly as a result.