Observations on the 2020 Presidential Election and the Electoral College
by Joan I. Schwarz
The most important lesson for all who demand accessible and transparent elections in our democratic republic is that eternal vigilance of our state and federal officials is required. Here’s why. More than 50 lawsuits, including one in Wisconsin, contesting the Nov. 3, 2020, General Election results, have been filed and subsequently dismissed by United States judges for lacking merit.
Nevertheless, Attorney General of Texas, Ken Paxton, filed one more lawsuit on Dec. 7, 2020, in the United States Supreme Court. One hundred twenty-six House Republicans—nearly two-thirds of Congressional House Republicans—including newly re-elected (yup, this same election he is contesting) Wisconsin congressional legislator Tom Tiffany, filed what are called Amici Curiae (“Friends of the Court”) briefs in support of the lawsuit. Seventeen of 26 Republican state attorneys general also supported the lawsuit.
The suit, State of Texas v. Commonwealth of Pennsylvania, State of Georgia, State of Michigan, and State of Wisconsin, employed the rationale that in presidential elections, “the impact of votes cast in each State is affected by the votes cast for the various candidates in other States,” and thus the citizens of Plaintiff State (Texas) have the “right to challenge multiple States’ maladministration of a presidential election” and the “right to demand that all other States abide by the Constitution.”
In other words, the plaintiffs demanded that the Supreme Court act in breach of the United States constitutional design by transferring power that belongs to state governments to the federal government. This is a direct violation of federalism, our system of government. Within days of the Texas lawsuit being filed, the United States Supreme Court dismissed the case, holding in an unsigned Order that Texas lacked legal standing to bring the case.
Photo by Arnaud STECKLE on Unsplash
These are serious issues for our democratic republic. This is the first time that the “loophole” in the Electoral Count Act of 1887 (a state deeming its own state election to have “failed”) has been used in this way, specifically, to request that the federal government deem state elections to have “failed” and then instruct each Defendant State about how to conduct its own elections which, under federalism, is solely a state’s right.
The Attorney General of Pennsylvania aptly stated that the entire lawsuit was a “seditious abuse of the judicial system.” But the very fact that this lawsuit was filed and that 126 states and 17 attorneys general requested the Supreme Court to referee how multiple states should conduct their governing and elections has significance. It was truly an attempt to undermine the bedrock of federalism.
Undeterred, on Friday, Dec. 11, 2020, Wisconsin’s Republican-led Legislature held what it called a non-partisan investigative public hearing about our 2020 election. Because the majority of witnesses testified to distrusting the outcome of the presidential election, most of the Democratic legislators left midway through the hearing. Most witnesses supported President Trump’s argument that the Wisconsin Election Commission (WEC) made unauthorized changes to Wisconsin’s statutes regarding absentee voting, mail-in ballots, drop-boxes, etc., all of which led these witnesses to believe that the votes were tainted and unlawful and needed to be invalidated. Similar to the premise of the Texas lawsuit, some argued that based on the alleged unlawful votes, a new slate of electors for Wisconsin should be submitted for certification for Donald Trump.
Photo by Darren DeLoach on Unsplash
We don’t know the cash cost of these suits, but the societal costs are playing out in full color. Displays of discontent amongst some of the public and the litigation that has ensued since the end of the 2020 presidential election has long-range implications. While the litigation about the 2020 election has reached an end point—December 14 is the certification date for the submission of electoral college votes to Congress—as a country, we still need to deal with the many Americans who do not accept the election results as legitimate as well as the many elected officials who, instead of learning from this election that most American want voting to be more accessible, have turned their attention to the next election and what they perceive is the pressing need to codify into state statutes limitations on voting opportunities.
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