Because the results of several 2020 U.S. elections are in dispute, most notably the presidential election, state and federal courts are being asked to rule on a wide variety of legal issues. The legal process, however, can be difficult to understand. We at the Rogue Review hope the following will provide some clarity.
The questions being presented to judges by Republicans and President Trump’s legal team involve claims of various types of election fraud. The results of multiple congressional races have already been changed from initial media projections based on closer examinations of vote totals. The cases involved are being filed in civil court, because the initial goal of Republicans is to address the results of the election. Criminal prosecutions, where fraud is discovered, are a separate type of legal action.
The evidence in these cases thus far has included but is not limited to 1) changes that were made by Democratic Party elected officials to voting standards allegedly in violation of state voting laws, under the pretenses of addressing Coronavirus related concerns, 2) sworn statements by election officials, official poll watchers, and U.S. Post Office employees concerning the fabrication of hundreds of thousands of ballots for former vice-president Joe Biden, and 3) physical and electronic evidence that thousands of ballots marked for Donald Trump were either counted for Joe Biden or intentionally discarded.
Where are the lawsuits being filed? This concerns jurisdiction. Courts take cases based primarily on whether they have the authority to rule on the issue at hand, and whether the issue occurred within the geographic area they are responsible for. Thus, the president’s legal team has to file lawsuits in each state where the results are in dispute, resulting in multiple lawsuits. Sometimes separate lawsuits are filed in the same geographic region because state and federal courts have jurisdiction over different areas of the law.
What did it mean when President Trump mentioned the issue of “standing” recently? In order to file a lawsuit, you must have standing. The simplest way to explain this is to say that you must have a stake in the outcome of a matter. For example, in Sierra Club v. Morton, 405 U.S. 727 (1972) the Supreme Court ruled that the Sierra Club could not sue over a particular environmental issue because the club had not been personally affected by it. Likewise, you cannot sue your neighbor for failing to pay rent to his landlord, because the rent in question does not directly affect you. Thus, the president’s attorneys are careful to select the correct plaintiffs for a particular case, as the president himself may not always be granted standing, even when he should be (in the past, biased judges have been known to use standing improperly).
What do the court “victories” and “losses” we’ve heard about so far mean? While each is important, no large unexpected problems or successes have arisen yet for either side. Because the president’s attorneys are familiar with the judges involved, they were aware from the beginning that they were going to lose in (for example) the Pennsylvania Supreme Court, which has a 5-2 liberal majority, just as they are aware of a greater likelihood of triumph in other courts. The attorneys expected to have to do what they are doing now, which is to appeal the results to higher federal courts, including, if it should agree to take the case, the U.S. Supreme Court. Thus, nothing truly unalterable has been decided at this point. Each appeal attempt will take into consideration the likely outcome of the appeal, the need to put issues on the record for the purposes of a further appeal as needed, and what the attorneys know about the judge(s) in question.
Will the Supreme Court hear the president’s case? The Court can choose to receive and rule on arguments concerning one, all, some, or none of the cases that will likely be appealed to it. It can choose to hear multiple appeals at the same time as part of one large “case” or hear them separately. Some issues that may concern the Court include 1) whether allegedly defrauded voters in each state were granted the “equal protection of the laws” as per the Fourteenth Amendment to the Constitution (including concerns over whether their ballots were “canceled out” by fraudulent ballots), 2) whether last-minute changes made to election laws and procedures by governors and state bureaucratic agencies, especially those changes causing millions of unsolicited ballots to be mailed out with few security measures, were legal given that the Constitution vests the state legislatures, not governors, with the power to set election rules, and 3) whether the Constitution’s Article IV section 4 guarantee of a “republican” form of government (democracy) to the states has been violated by election fraud.