For the last several months--since the abdication of the Roberts SCOTUS from involvement in Election 2020--we've been speculating about a possible 'Roberts strategy' for election law. The basic idea is that, based on recent election law rulings, CJ Roberts has devised a federalist strategy for extricating the SCOTUS from the swamp of election lawsuits--to the extent possible--by returning primary responsibility for elections to the states. Which is precisely where the Constitution places the exclusive responsibility. What a concept! That, of course, would run counter to the federalization of all elections that has been trending--at the instigation of the Left--for several decades.
The rubber may hit the road on Monday, when Jonathan Turley expects a ruling in the Arizona election law case that came to the SCOTUS from the Ninth Circuit. This term--since the election in any event--the SCOTUS seems to have adopted a policy of issuing quite narrow--perhaps excessively narrow--rulings, but on largely unanimous grounds. But it's difficult to see the Court disposing of the AZ case on narrow procedural grounds if Roberts truly has a strategy in mind. The AZ case seeks to legitimize the Left's favorite electoral tactics of ballot harvesting and so forth which the AZ law bans. If the Roberts court returns responsibility to the states there should be a scramble to rewrite elections laws--with the legislatures being held accountable to the voters.
In this context of a pending decision in the AZ case, DoJ took the step of initiating a lawsuit challenging Georgia's new law. Does the Zhou regime know something? Or, in my opinion, is this a last ditch effort to influence the SCOTUS decision in the AZ case? Or is it possibly an attempt to steal some of the thunder from a decision that Dems fear, for consumption of their base?
Jonathan Turley, law prof at Geo Washington U., has weighed in at Fox News with some interesting thoughts on the matter.
Nick Arama at Red State sets the stage, with reference to the new Georgia lawsuit:
The Democrats failed to pass HR. 1 and S. 1, the Senate’s version of it, their massive effort to essentially federalize elections and solidify their power. Now, they appear to be trying the next option: to go after the election security laws that have been passed in some states. As we previously reported, the DOJ has now sued Georgia, claiming Georgia’s recently passed election law is discriminatory against black people. Zhou Baiden has even called the law “Jim Crow 2.0.”
Zhou knows [Jim] Crow!
Yet, they can’t really point to what’s ‘racist’ about the law. Not only is the DOJ going after Georgia, Attorney General Merrick Garland indicated that they would be going after other states who passed or were in the process of passing other election security laws.
The problem is that all of this noise would become largely moot if the SCOTUS rules according to a Roberts strategy. Yes, the Dem noise machine would continue, but to less and less effect.
Fox also presents the background of the Georgia lawsuit, but Turley is the one who specifically raises the AZ ruling he expects tomorrow:
The Department of Justice sued the state of Georgia on Friday over election security laws
The Fox host poses the question, What is the prospect that DoJ will be able to offer proof that any provision of the new Georgia election law has a discriminatory effect--as publicly alleged by Merrick Garland?
Here is a transcript of Turley's entire response:
I’m highly skeptical and I think they may ultimately regret this move. It could indeed clarify this issue in a way that the Baiden administration does not want.
The Democrats often attack the judges who rule against them in a way that, frankly, the Trump administration sometimes did, but [shaking his head] this is a very dubious case in my view. Because the Georgia law has great overlap with other states, like Delaware [i.e., other Blue states].
Voter identification, as an example, is extremely popular with voters, and you now see a lot of democratic members beginning to say, 'really, we're not questioning that anymore.’
"President" Baiden was corrected by papers like the Washington Post for misrepresenting aspects of the Georgia law, and that's all gonna find a rather hard stop in the courts.
I'll tell ya, what's really surprising to me about this, because on Monday we're expecting a ruling in the Arizona election case, which comes under Section 2 of the Voting Rights Act, which is the presumed basis for this lawsuit [the Georgia one]. It's very odd that they'd make this announcement before they hear from the Supreme Court on that major election challenge.
The Fox host then presents the view theory that the Baiden/Garland DoJ may try to drag out the Georgia case in an effort to smear Republicans as racist, as trying to suppress black voters. Turley acknowledges this possibility, but immediately returns to his point about the Constitution and the states:
Well, this could be years, but ...
One of the issues that the court may ultimately amplify is that elections were left in the Constitution to the states. Alexander Hamilton actually wrote in the Federalist Papers, imagine if the federal government was to take over the management of elections, and he basically said, 'we would all object.' Well, that’s what’s happening now in Congress: they're trying, essentially, to federalize elections, and I think they are going to have a serious pushback on this lawsuit. And, yes, it may take time, but you could have a ruling [by the SCOTUS on the Georgia case] by the next presidential election that runs against the narrative of the Baiden administration.
Gratifyingly, Turley expresses the view that I've expressed in past comments. This Roberts strategy may seem messy, since it will rely on state legislatures to respond and assume their proper constitutional role, but ... it seems to me very unlikely that the SCOTUS at this point will allow elections to be federalized, in contravention of the express dictates of the Constitution. It will be far more gratifying if this is what transpires tomorrow!