A colleague (Rachel Lazarus of “Get The Popcorn”) posed an interesting bit of food for thought, and rather than try to dumb it down, I’ll just copy and paste:
Some of you may have seen an exciting announcement that the US Supreme Court has set down for conference a petition asking them to overturn the 2016 election. The Twitterverse and Facebook feeds have been all abuzz with this exciting news that the High Court might turn this election back.
Well, as you know, one of our favorite things to do here at Get the Popcorn is to crush all that excitement.
Here’s the backstory: in January 2017, three Massachusetts women filed Petition for a Writ of Mandamus to the 1st Circuit Court of Appeals. Simply explained, a writ of mandamus is a petition to a court asking them to order “an inferior government official” to do their job. This particular petition asked to halt the inauguration and to order a new Presidential election free from foreign influence. The Petitioners raised a novel claim- that is, the Constitution requires the US Government to protect the citizenry from foreign attacks. A cyber-attack is a foreign attack, they argued, and US intelligence, along with the Executive Branch at the time, concluded that such an attack had occurred. Therefore, they claimed, the government should be ordered to take steps to repel the attack, and eliminate damage from it.
The Circuit Court denied the petition and the Petitioners appealed to the Supreme Court. Because they followed all the correct procedures, and because there is a claim of jurisdiction (a Constitutional issue and a claim of foreign attack), the Clerk of the Supreme Court assigned a docket number. According to the Supreme Court’s website, somewhere between 7,000-8,000 cases are docketed each year.
Once a case is assigned a docket number, it must be eventually distributed to the Justices for conference and assigned a conference date. Today the Petitioners announced that their case is scheduled to go to conference on March 17, 2017. Although the details of any conference is a closely guarded secret of the Supreme Court, experts estimate that only about 25% of the cases at each conference even get discussed; those that are not discussed are automatically denied. While there is a theoretical possibility that the case could be accepted for consideration, it is highly unlikely.
If the Court were to get to the merits of the case, I can think of several problems. First is, as Greg explained in an earlier post, the US just does not have a mechanism for an election do-over. We just don’t do that. Second, a writ of mandamus allows the court to order “an inferior government official” to do something. As we’ve been discussing much in the past few weeks, the 3 branches of government are co-equal. While the Court can declare something unconstitutional, I do not think the Justices can order the POTUS, VPOTUS, and Congress to hold a new election.
And just in case you were worried that this was causing the Administration to lose sleep at night—they waived their right to file a Brief in Opposition of the petition, which lawyers do when they are fairly confident that the court will not act.
To which I replied: I think the fact that the US does not have a “do-over” process for an election speaks volumes. Further, just because we do not have one does not mean we do not need one.
And I received this reply in response:
yes: we should absolutely have some way to have a do-over, but the issue with that is that federal elections aren’t run by the federal government: they’re run by the states instead. That would mean that 50 states would have to set up 50 “do-over” processes, and those would almost certainly be different from each other.
Also, the question would become: which elections? Would we need to have a do-over for EVERY election, or just the federal ones? For instance, I live in Atlanta. I voted for the electors for POTUS/VPOTUS, a federal Senator, a federal House representative… then I voted for state offices. Then I voted for county offices. Then I voted for city offices.
Then I voted on state constitutional amendments.
That is 5 separate entities for which I’m voting: if the city of Atlanta says they need a revote, do I need to revote for POTUS? Or vice versa… our system is kind of screwy that way.
Personally, I don’t think it needs to go that far down the rabbit hole or become that complicated. You vote for whichever do-over is being requested. If the election for SCROTUS needs the do-over, why on Earth would you vote again for Senators, counsel members, mayor, etc.? If your Senator is being ousted and you need a do-over, why would you vote for SCROTUS again? While I agree it would seem organizing 50 states for a federal do-over would be no small task, we do it every 4 years anyway. It would seem to me, then, that the rare but necessary option of a do-0ver would be viable