What would King Solomon do if he were on the Supreme Court in 2020?
Time is running out for the presidential election of 2020. Texas attorney general Ken Paxton filed a lawsuit directly to the Supreme Court charging that Michigan, Pennsylvania, Georgia, and Wisconsin have violated the Constitution. Now 17 other state attorneys general have joined the suit. This is the only reasonable path for Donald Trump to get a hearing before the Supreme Court. It is not certain that the Court will take the case, nor that it will rule in a favorable way for Trump. But a Solomonic solution is possible.
Chief Justice Roberts has altered his interpretations of the Constitution since he justified Obamacare under federal taxing power. He would not want his Court's legacy scarred and attacked by the media and Democrats as was the Rehnquist Court in 2000 in Bush v. Gore. The media declared that the Court selected G.W. Bush as the president rather than the people by halting the Florida Supreme Court's interference in the selection of electors. Therefore, he would implore the other justices to rule in a way that moves toward unanimity. This is possible.
The Constitution grants the exclusive power to choose electors in the state legislatures via Article II, Section 1. In McPherson v. Blacker (1892), Chief Justice Melvin Fuller, writing for the majority, ruled that the Legislature of Michigan does not surrender its plenary power. Further in Chiafalo v. Washington (2020), the Court unanimously ruled that the states can bind electors. The 2000 Gore case reaffirmed the role of the legislatures. So there is clear precedent, and this Court would likely reaffirm the legislative power of the states in choosing electors.
There is some political wisdom in arguing against these four states. Their legislatures are Republican-controlled, though three governors are Democrats and Georgia's Republican governor is not inclined to intervene. The total of the electoral votes of these states amounts to a number that could change the outcome of the election, so there is significance in any decision. Further, in these swing states, there is evidence of fraud or irregularities that could alter the result in which Biden was declared the winner.
The Court has original jurisdiction under Article III, Section 2 to hear the case. This would allow a decision before Dec. 14, when electors meet to vote. Safe harbor day has now passed, so new lawsuits appear unlikely. Several lower-court judges have refused to hear cases that would speed the movement through appellate courts and to the Supreme Court. Rudy Giuliani had sought to have the legislatures of several states intervene to overthrow the questionable elections in the swing states that Trump had won in 2016. Now there is a vehicle for this possibility.
If the Court rules that these states handled the election incorrectly, they could have the legislatures in these locations decide the outcome. Then the Court is not the chooser. Surely, some will attack the Court, but its decision would split the issues so that each state must be the final arbiter. The Court would then affirm its previous rulings but not decide the election, which is a political choice. Given the bizarre year that 2020 has become, this would be a fitting end. It is not clear how these states would determine their electors in this case.
Photo credit: Pixy.org.