Is the Fox guarding the Henhouse?
Is the Fox guarding the Henhouse?
by Paul Engel
- Pennsylvania citizens were, again, denied their day in the Supreme Court.
- Justice Thomas’ dissent shows why the court’s refusal to hear these cases from the 2020 election are unjust.
- What should we do if the courts will not protect our consent in how we are governed?
It seems we too frequently forget that the courts are part of our government. Several groups petitioned the government, in the form of the federal courts, for a redress of the grievances that state actors other than their legislatures changed the manner of holding elections. When the supreme Court denied to hear these cases, it reminded me why we should not blindly trust the courts to protect our rights. Why? Because in many cases, they are the fox guarding the henhouse.
The 2020 elections exposed a number of issues in the election processes for several of the states. By far the most egregious actors were members of the courts. From the usurpation of the legislative process by state courts to the denial of the right of petition by the federal courts, especially the supreme Court, I believe there is ample evidence of failures on the part of the judicial branches of governments at many levels. And with the American people placing so much trust in the courts to protect their rights from the overreach of government, this does appear to be a case of the fox guarding the henhouse.
Today I want to focus on a recent cases out of Pennsylvania, not because what happened there was worse than what happened in other states, but because several cases which were brought before the supreme Court of the United States were summarily dismissed. This continued exposing the American people to fraudulent elections, and bringing further into question whether the powers governments are exercising are at the consent of the governed.
The cases of Republican Party of Pennsylvania v. Degraffenreid and Corman v. Pennsylvania Democratic Party, are the latest election cases out of the Commonwealth of Pennsylvania to reach the supreme Court. Their petitions for writs of certiorari (judicial review of the decisions), were denied by the supreme Court. In his dissent to these joint denials, Justice Thomas brings up some very interesting points. Issues that should not only bring into question the legitimacy of our elections, but the dependance we have put on the courts to get what we want.
The Constitution gives to each state legislature authority to determine the “Manner” of federal elections. Art. I, §4, cl. 1; Art. II, §1, cl. 2.
This may seem like a simple point, but the Constitution of the United States is quite clear the manner of holding elections for United States Senator, Representative, and President is to be determined by the legislature of the several states:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
U.S. Constitution, Article I, Section 4, Clause 1
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress:
U.S. Constitution, Article II, Section 1, Clause 2
Yes, Congress can pass laws altering the regulations for elections, but not the courts. Yet that is exactly what happened, and not just in Pennsylvania.
Yet both before and after the 2020 election, nonlegislative officials in various States took it upon themselves to set the rules instead. As a result, we received an unusually high number of petitions and emergency applications contesting those changes. The petitions here present a clear example.
What we have is a clear violation of the Constitution of the United States. As shown, the U.S. Constitution delegates the authority to determine the manner of electing federal officials solely with the state’s legislature, unless altered by Congress. But in 2020 we had several other actors illegally changing the rules for conducting the elections. Specifically, Pennsylvania Supreme Court attempted to change the deadline and requirements for accepting mail-in ballots.
The Pennsylvania Legislature established an unambiguous deadline for receiving mail-in ballots: 8 p.m. on election day. Dissatisfied, the Pennsylvania Supreme Court extended that deadline by three days. The court also ordered officials to count ballots received by the new deadline even if there was no evidence—such as a postmark—that the ballots were mailed by election day.
Why did the Pennsylvania Supreme Court overrule the legislature and extend the deadline? Again, from Justice Thomas’ dissent:
Then, in response to COVID–19, the legislature again amended the law but decided not to extend the receipt deadline further. See 2020 Pa. Leg. Serv. Act 2020–12.
Displeased with that decision, the Pennsylvania Democratic Party sued in state court. It argued that the court could extend the deadline through a vague clause in the State Constitution providing, in relevant part, that “[e]lections shall be free and equal.” Art. I, §5.
One of the political parties was displeased with the will of the people, as expressed in the votes of their representatives, and decided to sue. While it has become a common practice to attempt to get through the courts what you cannot get through the legislature, look at the rationale by which the Pennsylvania Democratic Party believes the court can give them what they want:
Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.
Most people agree that elections should be free and fair, but is it interference with a free and fair election to set a deadline for accepting mail-in ballots? If that were the case, wouldn’t the Pennsylvania Democratic Party be asking the courts to do the exact same thing, just with a different date? Or is it only interference if the deadline is set for Election Day?
All elections by the citizens shall be by ballot or by such other method as may be prescribed by law: Provided, That secrecy in voting be preserved.
It seems pretty simple. The method of casting mail-in ballots was established by law and did not infringe on the right of the people of Pennsylvania to a free and equal election. So what did the Pennsylvania Supreme Court do?
On September 17, it held that this “free and equal” provision enabled the court to extend the deadline three days to accommodate concerns about postal delays.
The court decided that it knew better than the representatives of the people of the Commonwealth, and that an arbitrary extension to the deadline be put in place. However, that’s not all.
The court also ordered officials to count ballots received by the new deadline even if there was no evidence—such as a postmark—that the ballots were mailed by election day.
So as long as you could get your ballot delivered quickly, the court not only extended the deadline for receiving ballots, but for casting them as well. In other words, the court re-wrote the election law, again violating the Constitution of Pennsylvania, and that of the United States.
The legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives.
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
Supreme Court of the United States
So we have the Pennsylvania Supreme Court ignoring the Constitutions of both Pennsylvania and the United States. This should be a clear case where the right of the people to petition their government for a redress of grievances is warranted. And that is exactly what several people did.
Petitioners promptly moved for emergency relief, filing an application for a stay on September 28. That application easily met our criteria for granting relief…. Not only did parties on both sides agree that the issue warranted certiorari, but there also was no question that petitioners faced irreparable harm…. Petitioners further established a fair prospect of certiorari and reversal.
So we have a petition for emergency relief filed in federal court. A petition that, according to Justice Thomas, easily met the supreme Court’s criteria for granting relief. Both sides agreed that the issue warranted being heard by the supreme Court, that petitioners faced irreparable harm, and that there was a fair prospect of reversal. What did the court do?
Despite petitioners’ strong showing that they were entitled to relief, we divided 4–4 and thus failed to act.
The court spilt 4-4 on the question of granting certiorari, meaning it was not granted and the case was not heard. But this didn’t end there:
Four days later, petitioners filed the first of these petitions and moved to expedite consideration so the Court could decide the merits before election day. But by that time, election day was just over a week away. So we denied the motion to expedite even though the question was of “national importance” and there was a “strong likelihood that the State Supreme Court decision violates the Federal Constitution.”
Again, some in the Commonwealth of Pennsylvania petition their government, in the form of the federal judiciary, for a redress of their grievance. Rather than dealing with the issue which was urgent, important, and likely to lead to an overturning of the Pennsylvania Supreme Court opinion, the U.S. Supreme Court denied to hear the case again.
The denial of certiorari on February 22nd, is the third time people of the Commonwealth of Pennsylvania have had their petition denied by the supreme Court. Why? While the opinion does not specify why the petition was denied, we do get some clues about possible reasons from Justice Thomas’ dissent.
We are fortunate that the Pennsylvania Supreme Court’s decision to change the receipt deadline for mail-in ballots does not appear to have changed the outcome in any federal election. This Court ordered the county boards to segregate ballots received later than the deadline set by the legislature… And none of the parties contend that those ballots made an outcome-determinative difference in any relevant federal election….
At first blush, it may seem reasonable to address this question when it next arises. After all, the 2020 election is now over, and the Pennsylvania Supreme Court’s decision was not outcome determinative for any federal election.
But whatever force that argument has in other contexts, it fails in the context of elections. For at least three reasons, the Judiciary is ill equipped to address problems—including those caused by improper rule changes—through post- election litigation.
The supreme Court ordered that the ballots received after the legal deadline be segregated, to prevent contamination of the vote should the court decide to overturn the opinion of the Pennsylvania Supreme Court. It appears that the extended deadline did not change the outcome, at least of the Presidential election. A very likely reason why the court decided not to hear the case is that the illegal actions of the Pennsylvania Supreme Court did not change the outcome of the Presidential election. In other words, the court appears to prefer kicking this particular can down the road, rather than deal with the blatantly illegal actions of the Commonwealth. While Justice Thomas goes on to give reasons why the court should not wait until next time to deal with this problem, he misses what to me is the most important reason of all, i.e., the justices’ oaths to support the Constitution of the United States!
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;
The fact that it appears the illegal interference in the election process by the Pennsylvania Supreme Court did not impact the Presidential election, what about the right of the people of the Commonwealth to determine the manner of elections via their representatives? What about their right to equal protection under the law? And yes, what about the next time this happens? And not just in Pennsylvania, but the other states where courts illegally meddled in the election process? Part of the reason our Constitution was created was to establish justice. If such blatantly illegal actions are allowed to continue unabated though, where is justice? Some may say that since the outcome of the election was not changed, “no harm, no foul”. But there was harm. There was harm to those who questioned the legitimacy of all of the Pennsylvania elections. Did the ballots cast after the legal deadline impact races other than those for Presidential Electors? Are there people who legally won the election, but were denied by illegally cast ballots? And what about the damage to the rights of the people of the Commonwealth, to consent as to how their government runs? What the Pennsylvania Supreme Court did was beyond the consent of the people of Pennsylvania, yet so far they have not been called to account for their malfeasance. And since this election impacted all of the states, not just Pennsylvania, what about the harm to the citizens of other states who cannot trust that those in federal office were chosen by free and fair elections? In short, the justices of the supreme Court don’t seem to place a premium on their oaths of office or on the consent of the people of the United States who employ them.
This is what happens when the American people place their trust in courts to protect their rights. While most Americans appear to view courts as impartial arbiters of facts, they are in fact government agents, with all the baggage that comes with it. Why do you think people refer to justices as conservative vs liberal or democratic vs republican? Because, if you want to have a seat as a judge, you must play the political game. And if you think that game stops when you attain a seat on the high court, you’re fooling yourself.
Courts are made up of people, who have their own opinions and agendas. In this day and age it appears that once someone assumes a position on a high court, their opinions are above challenge, but that is not the case. If, as the Constitution says, We the People established this Constitution and its government through our states, then we can fix it. As the Declaration of Independence says:
That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
I do not think the government has become so destructive to our rights that we need to abolish it through force of arms. I do, however, believe it is far beyond time We the People alter it by hiring people to represent us and our states, who will abide by their oath to support the Constitution. And not just at the federal level, but more importantly, at your state, city, and county level as well. As President Garfield said:
Now more than ever before, the people are responsible for the character of their Congress. If that body be ignorant, reckless and corrupt, it is because the people tolerate ignorance, recklessness and corruption. If it be intelligent, brave and pure, it is because the people demand these high qualities to represent them in the national legislature
James A. Garfield, U.S. Centennial celebration
We have those who sit on the courts because the people have elected representatives who put them there. And they remain on the court because the people continued to elect those representatives who keep them there. If the courts are ignorant, reckless, and corrupt, it is because we hire ignorant, reckless, and corrupt people to exercise our sovereign power. So to the people of Pennsylvania I ask, why are you looking to Washington, D.C. to fix your mess? After your governor appointed the justices on the Pennsylvania Supreme Court, you voted to keep them around. Is anyone putting pressure on the Judicial Conduct Board to discipline these justices who voted to steal your right to control the voting process? Who is pushing to have them voted out of office? Why does it appear that you are begging for the federal government to come to your rescue, rather than cleaning up your own mess?
Speaking of the federal government, the federal courts exercise the judicial power of the United States because We the People said so. If those who currently sit on the court will not exercise that power to establish justice, domestic tranquility, and the general welfare of the United States, then they should be removed from office for the bad behavior they have exhibited. If we cannot trust the justices of the court to be impartial arbiters of the facts and law of a case, if we cannot trust them to abide by their oaths, protect our rights, and to insure due process, then we should treat their opinions with the same deference they give to their oaths of office. If they won’t abide by the compact that created their office, why should we abide by their opinions?