The Supreme Court failed to affirm the president’s recent executive order protecting election integrity by voter ID and eligibility.
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The details of the Court’s judicial reasoning is full of granular reference made ultimately to various federally derived postal rules which are not relevant to the larger national security implications of the EO.
Unfortunately the Court failed to anchor its attention fully to the one document that mattered: the larger U.S. Constitution.
The Court, yet again, can’t see the forest from the trees, and worse, got caught up in analyzing the tree bark. Like a pilot in a spin, it is suffering from spatial disorientation, and has judicially crashed.
Apparently the SCOTUS believed the question before them involved the post office.
Their attention was captured by the concept of postal delay: that the president’s EO would retard mail ballot processing with rules designed to actually protect it. Their perception of time overruled the necessity of security. They fell for the legal subterfuge of the DNC, and lost their constitutional compass. The Court buried itself in minute legalism, rather than actual national justice.
The Court is otherwise so used to picking winners and losers in traditional litigation, that it forgot that the Constitution can be a different national duty. A constitutional fight can sometimes create a zero-sum result: everyone loses if the nation is splintered by political tribalism. Unity is the constitutional cause, and no one wins when a constitutional election system is seen as a dispute instead of a joint responsibility.
A novel comparison may help.
In 1986 the space shuttle Challenger was launched from the Kennedy Space Center despite clear and unequivocal data indicating that a booster O-ring would not seal under the low temperatures that struck Florida that January. In response to repeated engineering concerns about the near certainty of hot gases escaping around the O-ring, and creating an eventual explosion, a manager responsible for launch claimed in exasperation, “do we have to wait until April?” A dispute arose, pitting one group against another, instead of a unified body dedicated to total system integrity.
The perception of delay outweighed the reality of safety.
The SCOTUS fell for the same error in thinking and judgment: a delay or interference in the November election would create a “harm” above and beyond the cost of doing things correctly.
The SCOTUS just ensured a constitutional explosion. The mail ballot equivalent of the O-ring — voter ID and proof of citizenship — ensures that the election launch doesn’t create a “leak” in the system, resulting in failure.
Like the Challenger launch, would a delay and rescheduling, in itself, actually result in harm?
If the president’s EO took some time to implement, and ensured a higher level of voting integrity, even if it had to be postponed until the Spring, what would be the cost?
That’s hard to define, except in how it would delay the DNC from election fraud; from gaining fraudulent control of Congress, and from starting a fraudulent impeachment act, throwing the country into chaos. The cost of not delaying could be a disaster. The rate of return from fixing the eligibility problem is unmatched.
A constitutional crisis is defined in a number of ways; some describe it as a revolt or coup; others as an overwhelming defiance of the legal order.
A crisis can also describe a conflict between the government branches.
That clearly exists today, but it is more than that. By turning their back on a clear presidential authority under the Supremacy Clause due to state violation of election law and a subsequent conflict-of-law problem, the SCOTUS is a failed branch. It is not defying the president — it is defying the Constitution, and a federal matter that is its direct remit. If it fails to comply with that duty, what are the solutions? I see three.
First, the chief executive can simply ignore the Court: it has no enforcement mechanism or police force or any method of defiance but to effectively write more opinions on a piece of paper.
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Second, the president can issue another EO, as he did in the birthright controversy, elevating it from a technical matter of an Amendment interpretation to one of strict national security and the laws of the United States.
The third option is to pause the election until a cure can be made in eligibility qualification and proof; that is, until voting can be made legal. That is obviously fundamental to the engineering design of an election system, as it is to the integrity of a space vehicle launch: all systems must be “go.”
Mail ballots, which now represent, astonishingly, a third of all votes, are not just a state matter or about postal rules; they make up one of the main “engines” of a voting launch.
The national emergency argument has been made, and it is legitimate, and justified.
The November midterms must be suspended, or the “countdown” stopped until all voting is done in strict compliance with voter eligibility.
The DNC carefully engineered a false legal standing to challenge the EO (as Justice Samuel Alito pointed out in his ) and is the true cause of any election delay or emergency action — not the president’s EO, or the president.
In conclusion, the White House should raise the election integrity argument beyond ballots, to the election system “launch risk,” and deploy all force necessary to preempt a constitutional crisis.
The citizen majority of the U.S. who voted for the president want action, and will support him. This crisis happened before in 2020.
Unfortunately we tend to have short memories, and over time we “normalize the risk” rather than face it. But it will resurface again, and again, unless the problem is solved for the good of the entire nation.
The great irony of the SCOTUS is that it is failing to adapt to the realities of the Republic, and even democracy.
The Court has all the hallmarks of legal hubris because of its contempt for the president, and the people’s will. The Court has become ideological in the extreme, and is creating a false opposition between a value (“harm” to voters from being “rushed” by new rules) and actual democratic procedures (ensuring fairness to all legal voters).
Sophocles’ ancient play Ajax seems to provide a lesson: civic responsibility can be a higher value than personal contempt, and political tribalism. A speech in the play is often called the “deception speech” because listeners think Ajax is going to change. In reality, he refuses to adapt and becomes alienated from his society. He falls on his sword, while denying his society its defender.
In a way, the U.S. Supreme Court, as defender of the Constitution, is refusing to adapt, and creating the same fate. It has no conviction, and its words, no meaning. Ajax is out of phase with his time, and with his own people. So is the SCOTUS.
“All hidden things the endless flowing years
Bring forth, and bury that which all men knew.
Falters the firm resolve and pledged word;
And none may say “It cannot happen here” (Sophocles, Ajax, 646-649).
Matthew G. Andersson is the author of the forthcoming book “Legally Blind” concerning ideology in law and policy. He has testified before the US Senate, and is a graduate of the University of Texas at Austin, and University of Chicago.
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