Sunday, June 27, 2021

Roberts Strategy To Be Revealed Tomorrow?

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:

Turley Points out How DOJ Suing Georgia Could Backfire Big Time on Biden, Dems

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:

Biden DOJ lawsuit over Georgia election law may backfire, legal scholar Jonathan Turley says

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!


  1. Given that many states are dependent upon the coffers of the federal government, these same states will ally with large supranational corporations to the detriment of our federation.

    The 2020 election was not an election, but a coup. The resulting treasonous government is now busy destroying the free people yet remaining in our nation.

    There government does not have the consent of the governed and worse, has no he desire to earn that consent.


  2. I'm certainly praying this is so.

  3. I cringe, with a Roberts led court it's like watching the lead up to a very bad accident in slow-mo. My fear is we get another 9-0 "win" with no meat and potatoes to go with it. Meaning AZ gets to keep it's laws in place but like a dozen other rulings (religion, cake baking, Obama care, 2nd amendment, etc) it's left open ended with no clear clean precedence so we can keep circling the drain.

    In reading the arguments the debate of getting away from the current 2 step test criteria carve out for section two would be intelligent. Slamming the door shut and clarifying that this does in fact belong to the states seem to be entirely to "constitutional" for the court!

    Blah... Nails across the chalkboard!

    1. I entirely understand that fear. Here's the counter argument ...

      The Roberts court has already indicated it wants to get out of supervising race based election law enforcement. The logical next step is to recognize the Constitution's general delegation of authority to the states to write election laws, as well as to enforce their laws--as we see happening in AZ. To punt on the current AZ case re ballot harvesting etc. would therefore run counter to the trend. This is different than punting on federal matters. It's a simple, hey, the states write these laws. Dems will call that punting, but it's not.

  4. Turley was type cast as a conservative legal scholar in the Daily mail article that mentioned the Fox interview, and fear that the Doj lawsuit may backfire. Daily Mail is a good way to see the deep state narrative, and in the comments the popular view.

    My theory is the Georgia lawsuit is a mixture of Alinsky, set the narrative the law is racist to increase Democratic voter turnout, perhaps get an injunction, get ahead of the recount, and hope through lawfare to delay it getting to Scotus for years, and by picking the right judge / venue get favorable actions.

    With after what happened in court with Flynn, and the Michael Mann hockey stick Mark Stein case that is in its 9th year, I am a bit pessimistic, and I hope I’m wrong.

    1. No, Turley is simply an old fashioned civil liberties of a distinctly liberal cast--much like Dershowitz in that respect. He's been left behind because he takes the Constitution seriously while mainstream Dems have morphed from center lib to rad prog.

  5. Ray beat me to it. The Biden* regime is a lot of show, little go--so far. They just don't take governing seriously. I'd be OK with that if it weren't for Iran, China, Russia,

    1. They take power seriously.
      Time will tell how fast they're willing to take it.

    2. It goes without saying I hope your read on Roberts, in this case, is correct. But I keep thinking: what am I not seeing? What am I missing?

  6. During my (thankfully) brief twitter stint of 2019-2020, I probably said a lot of things I'd take back if I could, but one of the better moments imo was when I said, wrt to the issue of whether the Trump Admin could ask census respondents for their citizenship/immigration status, that if Roberts voted against that, it would be unquestionable that he had well and truly committed himself to the dark side -- for whatever reason. Sure enough, he did end up voting to kill that, so I'll be shocked then if he does anything beyond whatever limited amount he may, God willing, be forced to do by the three Trump picks. (No need to wonder where Thomas and Scalia will come down.)

    And speaking of those three picks, I think it's fair to say about them something like I said about Roberts in that census case: after their refusal even to look at the election cases, if they don't speak out loudly and clearly in favor of ballot integrity and the right of the states to secure it, then I don't see how they can be considered in any meaningful way to be pro-Constitution or pro rule-of-law. They'll be more like Roberts than unlike him, which is to say we'll be right back to a reliable minority on the court whenever push really comes to shove, just like the bad ol' days.

    Lastly, I understand why it is called the "Roberts Court," (and I'm not at all trying to correct anyone who calls it that, lol) but it seems like it's really the "Gang of Three's" Court. Can anyone see Roberts playing the role of swing vote on any of the really big issues? Just seems that - on the really big issues that really matter most and that go 5-4 - his vote won't be the fifth vote in our favor ("our" meaning pro-Constitution/rule-of-law), and if it's a fifth vote against us, the story there is that one of the Trump picks sided against us; the Roberts vote will just be another dog-bites-man story. All of which means it's more the Gang of Three doing the kingmaking, not Roberts. Anyway, all that and 5 bucks gets you a coffee at Starbucks, right? :)

    1. @ Brad Crawford

      You could correctly describe the current balance of the court as "3,3,3".

    2. Probably so, but I’m a full on cynic, so for me it’s 2-3-4: Thomas-Alito, Trump’s 3, then the other 4. I only count the big cases, since to me all the smaller ones are useless if the big ones lose. I hope the Court makes me less cynical as time goes on, but until then…

  7. So its tomorrow, now... did I miss the grand strategy?


  8. The Supreme Court is poised to issue a major ruling that could impact the practice of “ballot harvesting” across the United States.

    The court’s justices are set to hand down their last opinions of their current session on Thursday, perhaps including on a voting rights case that calls into question Arizona’s law that bans ballot harvesting—or the practice of collecting ballots for delivery. Also under consideration is the state’s law that mandates the dismissal of ballots that were cast in the wrong voting district.

    More here:

    1. Based on the Constitution--and the recent election law cases getting the courts out of monitoring Southern states--this should be a slam dunk win for AZ. If it's not, I totally give up on the SCOTUS. That's my pre-decision position, anyway.

  9. I'm worried about Roberts, of course, but this fellow Kavanaugh also gives me great pause. I'm afraid he's a coward, and worse, no real friend of the Constitution. His decisions are starting to bewilder me.

    Sidebar: keep up the good work. Your engagement and refusal to give up inspire the lot of us.

    1. Roberts went with the majority. The three Lib justices dissented.

  10. Arizona won this one.

    Supreme Court upholds Arizona restrictions in major
    voting rights, racial discrimination case

    The Supreme Court on Thursday ruled in a major voting rights case involving whether Arizona voting restrictions are racially discriminatory.

    The high court ruled Arizona’s out-of-precinct policy and HB 2023 do not violate the Voting Rights Act and were not enacted with a racially discriminatory purpose. The judgment of the Court of Appeals is now reversed, and the cases are remanded for further proceedings consistent with this opinion.