Wednesday, May 26, 2021

UPDATED: Briefly Noted: Is The CJ Roberts Plan Working?

UPDATE: I'm putting this update at the beginning because it tends to support what follows. Briefly, this.

The Soros SecState of AZ was declining to get involved in the AZ election law case discussed below--it's now before the SCOTUS and it deals with stuff like ballot harvesting. This is potentially a huge case with implications for the freedom of ALL states to police elections as they see fit. While CA would doubtless seek to continue its anti-election integrity ways, most states would not. So, since the failure of the SecState to defend AZ law could throw a monkey wrench into the appeal, the AZ Attorney General has formally jumped in to preserve AZ's interests in fair elections. This via TGP--this reads like a press release and appears as a quote, but I couldn't find a link:

On Tuesday, Attorney General Mark Brnovich filed a Motion to Intervene with the Ninth Circuit Court of Appeals on behalf of the State of Arizona in the Democratic National Committee lawsuit challenging Arizona’s ban on ballot harvesting and statutes regulating out-of-precinct voting. Attorney General Brnovich is moving to intervene on this matter on behalf of the State because defendant Secretary of State Hobbs has announced that she does not support an appeal.

As noted in today’s filing, Attorney General Brnovich moves to intervene in this matter, assuring the State’s interest in retaining its “broad authority to structure and regulate elections,” is fully preserved and that there is no possible procedural hindrance to Supreme Court review of the matter. The Attorney General is empowered by Arizona law to seek intervention in federal court on behalf of the State.


Back at the beginning of March I wrote a post that examined an idea that Shipwreckedcrew had put forward. The basic idea was that, in declining to involve the SCOTUS in legal disputes over the 2020 presidential election Roberts was pursuing an actual strategy--not just abdicating the SCOTUS' responsibility to uphold the Constitution.

Let me elaborate on that idea just a bit, to give Roberts the benefit of the doubt. There's no question that the SCOTUS could have stepped in--the Texas case in which numerous additional states joined would have been, IMO, perfect. From that standpoint the reasons given by the SCOTUS for sidestepping the case were unconvincing and harmed the prestige of the court by calling its judicial integrity into question. After all, what constitutional isse could be more fundamental and more important than one that called into question our entire electoral process? I discussed this aspect in the earlier post: Arizona Election Law Case In SCOTUS.

On the other hand, while the SCOTUS--in contrast to the executive and legislative branches--is supposed to be above politics, it simply is no longer possible for the Court to disregard political considerations--if that ever was possible. That is all the more true in that politics in America have become utterly toxic from a constitutional standpoint. The country is sharply divided, with the current regime narrowly controlling both the White House and Congress impugning fundamental concepts of the American order. What is the SCOTUS to do--plunge forward, or ...

Encourage the state legislatures to act by exercising their constitutional authority to regulate elections? That would return elections to regulation by the political branches of state governments, where the US Constitution placed the authority in the first place. The idea is that the putative Roberts strategy would support state legislatures taking charge of their own affairs--rather than the SCOTUS arrogating that authority to itself. In future, then, the SCOTUS would largely butt out of election law cases--the effect being to neuter much of the electoral lawfare we currently see in the federal courts. Voters at the state level would be able to express their views on their own states' election laws and their own courts at the ballot box. That HOPEFULLY is the significance of the SCOTUS--having previously declined to get involved in more sweeping election cases--now taking on a much more pointed case involving the swing state of Arizona.

I'll go into these issues a bit down below, by pasting in part of the earlier post which discusses the Arizona case that is now before the SCOTUS. For now, I want to simply question whether what we see happening in Arizona with regard to the AZ senate's audit of Maricopa County may reflect the effect of Roberts' strategy. 

Here's what interests me. We saw early on in the audit process that Dem election lawyers descended upon AZ and urged the Zhou regime's DoJ to get involved. That hasn't happened, so far. Why not? Is it possible that the Dem lawyers have come to the realization--perhaps as a result of the SCOTUS taking on the AZ case--that any legal challenge by DoJ of a state exercising its authority under the US Constitution would likely get fast tracked to the SCOTUS, and could result in a sweeping ruling that the Dems could bitterly regret? The AZ senate is pressing forward with its audit, despite continuing obstruction--the senate shows absolutely no signs of backing down, which may be encouraging audit and/or reform efforts in other states as well. Again, the question arises: Is Roberts' strategy having an effect? We can only hope so. The road forward would be messy and prolonged, but politics almost always is. We have in our constitutional order a political regime. Such a Roberts strategy--if that's what we're seeing--would recognize that fundamental constitutional fact by returning to the states the authority that the SCOTUS unwisely usurped. We shall see.

Now, here's a portion of the previous post:


I'm not about to try to summarize Shipwreckedcrew's full article about the AZ election law case that will be argued at the SCOTUS today--Brnovich v. DNC. Very briefly, because election law is very technical and this case depends on constitutional interpretation of state and federal law, at issue are AZ election laws that are race neutral on their face but which the DNC claims have a disproportionate impact on minorities. The case goes all the way back to 2016 and came up through the District Court, a three judge panel of the 9th Circuit, and then an en banc rehearing in the 9th Circuit. SWC engages in some speculation, as you can see from the title:

Is Brnovich v. DNC -- Set for Argument Today -- the Reason the Supreme Court Refused to Take up Election Cases?

SWC doesn't exactly spell this out, but here's my read on what he's at least hinting at. SWC is arguing--and this part is explicit--that CJ Roberts has a long term strategy for getting the federal courts out of the election law business and returning these matters to where they belong: state legislatures. SWC goes back through a bit of the history of the Roberts court on election law. The bottom line appears to be that, as long as the laws in question are not discriminatory on their face it's time for the federal courts to more or less butt out.

In fairness to SWC, his argument is detailed and he explicitly states that he's talking about "voting rights cases." The result SWC sees from the earlier case law--and, I presume, hopes to see continuing--is this:

No longer burdened with the “preclearance” requirement, states could pass voting-related legislation on subjects like voter ID, purging voter rolls, redistricting, ballot harvesting, etc.

Where the Arizona case comes in is that DNC lawyers--does the name Marc Elias mean anything to you?--despite the earlier SCOTUS case law of the Roberts court, are still attempting to conduct a lawfare campaign against state tightening of their election security through other sections of the Voting Rights Act than were interpreted in the earlier cases. That's what happened in the en banc rehearing in the 9th Circuit, in which the Dem judge overruled the District Court and their own three judge appellate panel. Obviously, SWC hopes to see the SCOTUS reverse the 9th Circuit, and believes that Roberts' long term strategy will have its effect.



  1. I wouldn't underestimate the betrayal capacity of Roberts.

  2. In "through other sections of the Voting Rights Act *than* were interpreted....", did you mean
    "through other sections of the Voting Rights Act *that* were interpreted...."?

    And, how does this SWC theory account for Roberts' rulings before the election, esp. the one w/ the tie vote on, if I recall, PA voting deadlines?

    1. Nope. Didn't mean "that."

      SWC's theory works well with the PA case. Under that theory Roberts--as I explained--would be trying to remove the SCOTUS from all of these last minute election cases. He would be putting the onus on the state legislatures to flex their constitutional muscles and exercise the control that is in their authority. If the states do that Roberts will support them. As I recall, the PA legislature failed to take vigorous action in a timely manner when the SecState unilaterally changed the rules. Roberts would not want the SCOTUS involved in those matters when the US Constitution gives authority to the state legislatures. This would be part of the federal system and should be handle at the state level.

      That's the theory. Is it reality? We shall see.

  3. Good timing on revisiting this, we should be seeing a ruling in the next several weeks.

    It's very difficult to give benefit of the doubt anymore where an federal institution restores constitutional powers back to a lower entity. From everything I understand about elections the end all be all seems to be each state's Senate, not the courts. It would be nice to see the hammer taken to the anvil one way or the other on that.

    The limbo are our age as a country on such matters is both embarrassing and baffling.

  4. Sounds good. States Rights. But if some White Supremacy state were to count all votes from a white area five times over, wouldn't it nullify the 15th Amendment? Or perhaps a corrupt State government could count five times over the votes from a black area, or even substitute fabricated votes, and claim racism and voter suppression if any questions were raised. Since money talks, it would seem a worthwhile investment for a country like China to buy up a handful of States and control American elections forever, after having bought up the media.

    1. "as long as the laws in question are not discriminatory on their face it's time for the federal courts to more or less butt out."

      If the laws are racially neutral the SCOTUS would back off and leave handling that to the enforcement branch, the executive. The examples you give are of non-neutral laws or of clear violations of laws.

    2. So who handles clear violations of election law in a timely manner if all elements of a State government are complicit?

    3. If even the executive branch drops the ball, are there no remedies through the courts?

    4. The executive, the President himself, asked the Supreme Court for a decision as to whether laws had been violated. They dropped the ball.
      The law is someething of a safety valve. Like diplomacy, it permits issues to be addressed before they escalate to war or its equivalent. The Supreme Court not taking up the case brought to them by one third of the States and the President himself, it is almost inevitable that these issues will be resolved in other fashions, and it will not be pretty.

    5. Probably the federal government. It's not as if the courts have eliminated election fraud, is it? You can't really be serious with these questions?

    6. Nobody said the courts would NEVER get involved. Please read what I wrote, rather than just spinning off questions.

    7. "The law is someething of a safety valve. Like diplomacy, it permits issues to be addressed before they escalate to war or its equivalent."

      Right--so you're really happy with what the SCOTUS has done with the law for the past half century. How did that "safety valve" to prevent escalation to war work during the years before the Civil War? Please get serious.

      The Constitution was not designed to establish rule by the SCOTUS.

    8. What you have written is admirable, but it addresses general considerations of election law, and points to future developments. But let us really get serious, first of all by acknowledging that the past election is not behind us. The Supreme Court was not asked to rule, but to issue a ruling on specific election irregularities. The law cannot eliminate election fraud, but should be able to address violations thereof. Diplomacy unfortunately does not always prevent war, but as von Clausewitz put it when unsatisfactory the next step is war. You "question whether what we see happening in Arizona with regard to the AZ senate's audit of Maricopa County may reflect the effect of Roberts' strategy." I would suggest that the various State audits, as well as revelations of illegalities and irregularities unknown to us but that POTUS 45 may be able to document, will have a more marked effect on future elections and where this Country is headed than any of Roberts' legal strategies.

    9. "the various State audits, as well as revelations of illegalities and irregularities unknown to us but that POTUS 45 may be able to document, will have a more marked effect on future elections and where this Country is headed than any of Roberts' legal strategies."

      Did it ever occur to you that Roberts may be of the same opinion? That he thinks that audits and investigations by the people who are in charge of the elections, as designated by the US Constitution, the state legislatures, is the way to handle "illegalities and irregularities"? Is it really up to the SCOTUS to provide legislators and elected officials with backbones, when the laws are already clear? The notion that the SCOTUS can preserve our union and our federal republic is ultimately unworkable, and is certainly not the system envisioned or put on paper by the Constitutional Convention. Given that the Congress has evolved into something that no longer resembles what the Founders envisioned, returning election disputes to the level closest to We The People--to the country and state level, as specified by the Constitution--properly leaves the decision on the direction in which this country will proceed to the voters.

      The SCOTUS has already screwed up much of our constitutional order by taking over matters that don't properly belong to it. The Court can't save us from our folly. Ultimately the people need to make their minds up through voting.

      I don't insist that this is Roberts' position, but it's a plausible interpretation. Nor do I insist that it will work--that ultimately is a question that the people must decide. Not a panel of life appointees. If the people don't insist on constitutional government, there's little the SCOTUS can do in the long run.

    10. Too true, but isn't it unfortunate that in the weeks following the election none of the substantial allegations being made were addressed by the courts and legislatures, and the last minute appeal by Texas, the President and other States to the Supreme Court was not taken up. The longer this drags on the more devastating and disruptive the consequences are likely to be for the Nation.

    11. The counter argument that Roberts might well make is that it is, in fact, far less disruptive that "this" should "drag on" following the provisions in the Constitution and state law--as opposed to a judicially imposed solution. The judicial solution would never be able to ascertain the actual facts of the fraud, whereas this process may well establish the fraud beyond reasonable doubt.

      I happen to regard the TX lawsuit as having been reasonably based. The fact remains that several swing states were totally controlled by the GOP while others had GOP controlled legislatures--the key in election law--yet the GOP in those states took no effective steps despite clear indications of what was coming. Is it really the job of the SCOTUS to take novel cases to rescue feckless politicians from responsibility for their mal/misfeasance? While I believe the constitutional principles are clear enough, the question of how the SCOTUS should conduct itself in a politically charged situation is not as clear.

    12. "If the people don't insist on constitutional government, there's *little* the SCOTUS can do in the long run."

      Even if there's *little* the SCOTUS can do, why couldn't the SCOTUS do that "little", when presented with strong evidence of systematic misconduct?
      If Roberts ends up going the route theorized here, OK, but until he does so, in *emphatic* ways, I assume that he was ducking for its own sake, or some such.
      For the court to have dismissed pleas from c. 20 AGs, with minimal explanation, was a flip of the bird, that Roberts had better rectify very very soon.

    13. Thank you especially for these last two paragraphs, and the reminder that those we are prone to criticize may well be the adults confronting a complex situation. Sometimes you have to muddle on through, and hope that we and the Nation will come out the better for it.

    14. @ aNanyMouse: What you're asking the SCOTUS to do is to take on the role of commenting on the political situation we now find ourselves in--which is a situation with a long history and many complications that fall well outside what is found in the "constitution and laws" of this republic. That's a role for which the justices have no particular qualifications, and so they were perhaps wise to wait for another case "with minimal explanation." Did you know at the time of the TX case that the AZ case was headed to the SCOTUS? I'm not ashamed to say that I was not aware of that at the time. Would it have been proper for the SCOTUS to have offered that as a reason for declining to take the TX case? Arguably not.

      "For the court to have dismissed pleas from c. 20 AGs, with minimal explanation, was a flip of the bird ..."

      For those state AGs and legislatures to have taken no action to enforce their won voting laws--the authority given to them in the Constitution, not to the SCOTUS or any other court--was that not a flip of the bird ... to the voters? Was it right for those AGs and legislatures to PRETEND--I'm looking at YOU Mark Ackman--that that was someone else's responsibility? Was it entirely wrong for the SCOTUS to, in effect, suggest that the AGs and legislatures act to "rectify [that] very very soon"?

    15. @ Anonymous, thanks, and please see my comment above to aNanyMouse.

    16. "For those state AGs and legislatures to have taken no action to enforce their won voting laws...."
      Particularly fair point, and I wish that Roberts' ruling on standing had rubbed their noses into this point, good and deep.

    17. But you know he needs to be more diplomatic than that. That's what pundits and elected legislators are for.

  5. As a non lawyer, My take is usually the Supreme Court takes the easiest way out under Roberts, and avoid controversy. I’m amazed this case was started 5 years ago. This case being know it’s was scotus bound, nicely explains why scotus avoided at all costs weighing in on the 2020 election.

    The easiest way out is put Election matters back in the state’s jurisdiction.

    On other matters throw it back to congress to fix.

    1. "the Supreme Court takes the easiest way out under Roberts"

      I'm by no means a Roberts fan, but I'm willing to consider that an approach--in effect--of demanding that the Legislative and Executive branches bear their share of Constitutional burden. Whether or not that's Roberts' strategy for the long term, it is a federalist approach. My criticisms of Roberts' approach have to do with bowing to the culture.

    2. I think it's interesting that the argument for seeing things on the other hand (and thereby giving CJ Roberts the benefit of the doubt) seems to hinge on this notion that since the nation is "sharply divided" - by what or on what terms one has to ask - The Supreme Court can be given leave to make political considerations in ruling on the Law, i.e. the Court is playing King or Keeper of the Constitution (or CJ Roberts is) and deciding how best to keep the nation out of civil war (or something terrible that apparently would result from "sharp divisions" not being accomodated by him). But this argument for SCOTUS ruling on the basis of at least in part political considerations just drives the nail further into the coffin of the Rule of Law -- what good is PRETENDING to stay in your lane and rule on the law only, in order that you might in the future find the opportunity to really truly stay in your lane and rule on the law only? There will always be politics, there will always be contention and the whole point, the entire point in being a "nation of laws" is that there is a system of justice that allows for the laws to rule.

    3. Do me a favor and read what I write before commenting. Is that too much to ask?

      I never argued that the SCOTUS "can be given leave to make political considerations in ruling on the Law". The SCOTUS is not required to accept any and all appeals. It accepts only a tiny number of petitions for review and it has long been established that it's prudent for the SCOTUS to wait for cases in which the factual basis raises clear constitutional or legal issues. That is not a "ruling" but is simply a prudential legal consideration on when a "case or controversy" is presented at a time and in such a manner that it's "ripe" for decision. This is a well established principle in judicial management.

      It appears that the SCOTUS decided that the TX case wasn't the right case, but that the AZ is. I may disagree with that assessment, but there are arguments in favor of that position. The AZ case, if decided in favor of AZ, would potentially give all states a huge incentive to take control of their elections and root out fraud.

      "the entire point in being a "nation of laws" is that there is a system of justice that allows for the laws to rule."

      Really? The laws are not self executing. It takes people to enforce the laws. And the point of being a federal republic is that the nation isn't ruled by a panel of nine unelected lawyers. Rule of law is just a bit more complicated than that and involves the legislature and executive--as Andrew Jackson figured out, long ago. Just because the nation has gotten used to giving deference to the SCOTUS no matter what, doesn't mean that that situation will continue forever.

      With that in mind, the SCOTUS is arguably in a difficult position when dealing with election law, because the Constitution views election law as something to be handled at the state level. To argue that the SCOTUS should exercise restraint, therefore, is not to abjure "rule of law" at all. Whatever I may think of the SCOTUS' handling of the TX case, it did not "PRETEND[] to stay in its lane and rule on the law only." It provided a rationale for not taking up a constitutional issue at that time.

    4. Also please cf. my response to aNanyMouse, above: