Saturday, December 5, 2020

SWC: Is SCOTUS Preparing To Drop A MOAB On PA?

Here's a highly recommended and provocative article on the situation with regard to Pennsylvania, written by Shipwreckedcrew. It's long and complicated so I won't attempt to summarize it in any detail, although I will give a bare outline:

Is There Another Scenario That Makes Justice Alito's Dec. 9 Response Date Meaningful in Different Way?


The basic argument runs like this.

Yes, it's true that Alito gave PA until the day after the Safe Harbor provision is triggered.

But ... the SCOTUS isn't bound by the Safe Harbor provision if it believes the legal challenge to the election has merit.

That means they could still enjoin the state from sending electors to the Electoral College meeting.

Now, with that in mind--Why would Alito give PA so much time to respond? 

Perhaps, in view of the fact that a totally politicized Supreme Court of PA behaved in a shamefully political manner and, by their lawless actions, deprived the citizens of PA of a free and fair election, the SCOTUS is preparing to drop a legal MOAB on PA.

What would that legal MOAB consist of? This is the argument of William Jacobson at Legal Insurrection (short version):

There is a lot of chatter that such a long period of time, under the circumstances, must be a way for Alito to let the application die on the vine, ... Certainly, we can’t read Alito’s mind, but if there’s anyone on SCOTUS I don’t worry about playing such games, it’s Alito (and Thomas, too early to tell for Gorsuch, Kavanaugh, or Barrett).

..., Alito giving the respondents’ enough time to fully prepare opposition likely means he and some other Justices take the matter seriously, and plan to rule on the merits once the opposition is submitted, rather than limiting their ruling to emergency injunctive relief. ... The few days gives the Justice enough time to prepare their respective opinions — it’s not like they really need briefs from the respondents to know the counter-arguments.

What that ultimate merits ruling would be remains to be seen. ...

The issue I keep coming back to is what is the remedy. SCOTUS could rule that the non-absentee mail-in votes were unlawful, and order that PA certify the vote and appoint electors based on the lawful vote only. That seems to be the only remedy to grant relief that works under the timeline for selecting the electoral college. ...

Would SCOTUS take such a step? It would mean that millions of voters who honestly thought they were lawfully voting would not have their votes counted. Don’t think for a second that the Justices don’t understand the political implications or are not sensitive to them.

I think we’ll find out one way or the other, but I don’t think Justice Alito is playing games to allow the case to die on the vine.

With that said, SWC offers his MOAB theory, which is this:

I’m not 100% certain in how this would play out beyond a Court decision — maybe that will be my next research project — but let’s suppose that the Court rules in favor of the Kelly Plaintiffs on the merits, and invalidates the “no excuse” mail-in voting scheme imposed on the Pennsylvania electorate without their consent as is required under the Pennsylvania State Constitution. What remedy other than simply declaring the 2.3 million mailed-in votes invalid might the Court impose? That would be a “naked” decision by 5 or more Justices to change the winner of Pennsylvania’s 20 electoral votes — a step I think the Court would be highly reluctant to take, as history would always reflect that it was the Court who chose the winner through its jurisprudence.

But, something I think the Court could bring itself to do is to simply declare the Pennsylvania contest voided — and to do so at such a time that prevents Pennsylvania from naming any electors to the Electoral College. That would shut the state out of the 2020 process of electing the next President.

This would be justified by the simple fact that the Pennsylvania General Assembly and the elected officials of the Pennsylvania State Government are all to blame for the manner in which the election was conducted.  They violated the rights of all Pennsylvania electors who were entitled to vote on the Constitutional Amendment adopting “no excuse” mail-in voting by imposing that scheme through Act 77 in violation of the Constitution.

That would unquestionably be a legal MOAB. The flaw that I see in this argument--interesting though it is--is that it ignores the evidence of massive fraud (in the mail in and absentee voting) and thus treats fraudulent votes as on a par with the votes of those who voted according to the laws enacted by the legislature. That hardly seems like a just procedure to me.

Nevertheless, the bottom line as it seems to me is Jacobson's argument that Samuel Alito isn't the guy to play games to allow a legitimate challenge to die on the vine. The conservatives on the SCOTUS, for whatever their personal foibles may be, are all serious people who cannot possibly be resting easy with what they see happening to our constitutional order. Jacobson's argument therefore carries some weight: There must be something in the offing beyond game playing.

The further problem that neither Jacobson nor Shipwreckedcrew addresses is that Pennsylvania--while obviously the most important state in dispute because of its large number of electoral votes--is only one of many states in which state officials violated the fundamental right of their citizens to free and fair elections. Addressing Pennsylvania alone would be inadequate. And perhaps that also has to do with the delay.

ADDENDUM: The Thomas More Society has a white paper that deals with these issues in more detail:


Set In Stone?

A Historical, Constitutional, and Legal examination of Electoral

College Deadlines and their implications for the 2020 Presidential



  1. The popcorn won't work anymore. I've switched to whiskey.

    Looks to be a bumpy ride from here on out.

    1. George Dickel and egg nog. The ride may still be bumpy, but you won't notice it.


    2. I picked the wrong week to give up drinking.

    3. I'm with Colonel Taylor small batch neat. No egg nog required.

  2. "it ignores the *the* evidence of massive fraud in the mail in...."
    I'll bet, you meant something else by the 2nd "the".

    "treats fraudulent votes as on a par with the votes of those who voted according to the laws...."
    What if Alito is thinking along the lines of:
    "I only have 5 votes now for giving DJT the PA EVs, but i can soon get (say) 7 votes for freezing these EVs.
    If I just drop a mini-MOAB now, SCotUS will get less flack, and can still drop the biggie later (if more evidence emerges strengthening the case, e.g. on the mail in and absentee voting fraud)."

    1. Dropping a mini-MOAB now remedies the worst of the injustices, and buys time to more thoroughly probe the specifics of the (magnitude of) systematic fraud.
      To jump into such specifics now, before the public has had time, to absorb the idea of systematic fraud, would be a helluva (and premature?) jump under these circumstances.

  3. This is similar thinking I shared in yesterday's blog where the Supreme Court needs to "act" to save the Republic. Where each individuals vote is sacred to the Republic.

    I don't care how this happens, MOAB or otherwise it has to happen.

    Mark, is there another possibility where Justice Alito may send the decision back to the states legislatures to actually "vote" on the electors?

  4. Electoral College Deadlines Not ‘Set In Stone’: Election Integrity Watchdog

    Read on - nothing but Inauguration Day January 20 is set in Constitution.

    1. Great stuff, Bebe, esp. on
      "current dates for Electors meeting and voting, and Congress tabulating Electoral votes, have only been Federal law since 1948.
      Appointment of Electors by statewide popular vote is local legal custom, not Constitutional law.
      For instance, South Carolina didn’t adopt electors by statewide popular vote until 1860....
      ... these dates have nothing to do with the transition of power, and are largely not relevant to a time when electors do **not have to ride horses** to Washington, D.C. to vote.
      Accordingly, these dates should not interfere, with state legislatures effectively investigating the management of the election, especially when we experience unprecedented manipulation of election rules, calling into question hundreds of thousands of ballots."

  5. SWC has another post that concludes with: “Could it be that both Pennsylvania AND Georgia are put in the position of not having Electors attend the Electoral College on December 14?”

    1. This comment has been removed by the author.

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  7. Couldn't the SC punt it to the PA legislature? The SC could declare that the vote is invalid and direct the state to determine what to do about it. It would give the legislature the push they need to make their own determination on electors without the SC being in the role of picking the winner or loser.

  8. I believe the mail in ballots are all fake so nobody is having their vote taken away.

    Rob S

  9. The only deadline is when Congress affirms the Electoral College vote at the count on January 6th. All the rest of the procedures, the December dates, "safe harbor", certification, etc. are in the legislative act from 1887 which is surely not binding on the present Congress.

    I still think the best path forward for Trump, the Republicans, and SCOTUS is for SCOTUS to order the states to audit the signatures- that is where the fraud can be proven, which makes every other decision far easier and clear cut. Basically, all of these states removed the security features that ensure 1 person, 1 vote, and all of them did so without any real input from the law itself- these were executive decisions made by the governors, state AGs, and Secretary of States.

  10. "it ignores the evidence of massive fraud (in the mail in and absentee voting) and thus treats fraudulent votes as on a par with the votes of those who voted according to the law"

    I think the justification here could be, time constraints not allowing a full audit or renewed elections. And that will again be state officials + legislation's fault, for not doing it until then, so they can't complain.

    I had shared my guesstimate which is very much aligned with this, in the comments section yesterday. I think at least 4 of these states will be disqualified due to violating constitution, not fraud, by SCOTUS. PA, GA, WI and MI. And that way, the ball will be relayed to US congress.

    I still believe Trump needs to finish preparations for the unthinkable before then. And he might want to give clues about it too, to help indecisive judges and legislators, reminding them the brewing anger of 80 million out there.

    Since Demsheviks stole so brazenly during the election, they will not hesitate to "influence" congress (bribes, blackmailing, threatening), to make the "right" decision.

    1. I will go one further in you, Kirk. The Executive Order signed by Trump in September 2018 declares a state of emergency based on foreign interference in US elections. We are not in a simple civil dispute over election fraud. We are in an undeclared, covert cyber war that involves the CCP and their colluding agents in and out of government, media, and tech.

      Lest anyone dismiss this as fantasy, we have several facts in play.

      First, recall that Democrats *always* accuse their enemies of those things that they, themselves are doing. When Dems alleged Trump collusion with Russia in 2016, be sure that Dems are only projecting what they have been doing for years if not decades with the CCP. Everything that has come to light reveals a horrifying pattern of bribery by CCP of not only the Bidens but almost every facet of American institutions. Keep this backdrop of corruption and subversion in mind as you consider what has transpired.

      Second, we now know for a fact that not only did Obama weaponize evry federal agency against conservatives, but those agencies were directed to flip the 2016 election for Clinton, then stage a soft coup in 2017, then rig an impeachment in 2019. It is no fantasy to believe that the CIA had a covert server farm in Germany, Serbia, and perhaps other places used to assist in ensuring that President Trump did not get a second term.

      Which leads to point three: under no circumstances can the Democrats, Deep State, CCP, and even some corrupt Republicans allow Trump to continue in power when he has shown every indication that he will investigate and prosecute (replacing Barr if he has to)those who subverted our republic as well as continue the war against CCP domination.

      Like it or not, Trump has made deadly enemies on every side and they have unleashed an unprecedented war against our Constitution and republic to overthrow Trump and replace him with a pliable, corrupt stooge in the form of Biden.

      The raid on the CIA server farm in Germany was real. Esper being fired and replaced by Miller with Ezra Cohen Watnick is real. The reorg of SOC directly to Miller is real. The interception of internet packets in and out of the CONUS is real (which means foreign interference).

      In sum, while the SCOTUS game is important and relevant on one level, we are at war. Trump has lined up the Department of Defense, the NSA, and DIA against the foreign and domestic enemies. It's obvious that no matter what SCOTUS decides, no matter what any state legislature decides, no matter what the House does in a contingent election, the enemies if the republic won't accept it and will move on to a declared insurrection and open coup. The military *will* be called upon-- likely by both sides-- to play kingmaker. If the military splits, we are in for a nasty 1930s Spanish civil war (so take a hard look at where you live, your neighbors, the likelihood that you will be singled out as a "fascis Trump supporter " and summarily executed as so many were in the Spanish civil war).

      The only way this doesn't happen is if Trump backs down and surrenders. The consequences of that however will be far worse in the long run.

    2. "It's obvious that no matter what SCOTUS decides, no matter what any state legislature decides, no matter what the House does in a contingent election, the enemies if the republic won't accept it and will move on to a declared insurrection and open coup.”

      I have been re-reading that Transition Integration Project document “Preventing a Disrupted Presidential Election and Transition
      August 3, 2020”

      This time I was paying closer attention and taking notes. What strikes me most is, some parts of it have literally been happening exactly as written. And in all the scenarios covered in the document, what you described above is an unavoidable plot outcome at some point.

      What’s also curious is, the course of action Trump and his team is taking, by putting the highest emphasis on winning popular consent and using the legal channels. I think they are trying to avoid the pitfalls and traps set for them by whomever TIP is serving. Because among so many things, SCOTUS is the least covered in the document, surprisingly. Maybe the sudden death of Ginsburg really opened a hole in their plans. Nevertheless they seem to be not only ready for violence, but they are counting on it.

    3. Cannot argue with your reasoning Tschifty -- and i reach the same conclusion, and no doubt the hints and allegations portend the kind of end game Michael Anton was warning about pre-election. I feel as though Trump in his rally last night was signalling he would accept the outcome but not give up the fight. Which I thought was strnage and interpreted to mean he is going to stay in the political arena, take his constituency and form a new party, that is I saw it all in POLITICAL terms, but you're right, its hard to ignore the all of the signs pointing to a foreign interference angle to all of this.

  11. I read recently somewhere, that claims any evidence that comes up to the SCOTUS, should first needs to be presented at lower courts. Does that mean, if lets say Trump team wants to add evidence from that server from Germany, they cannot add that evidence later on in front of rhe SCOTUS?

    1. Since none of the lower courts have addressed the allegations of other than to simply rule that there is no evidence of fraud, couldn't the SCOTUS do a de novo examination of the evidence..