Supreme Court Denies Trump's Attempt to Throw Out the Pennsylvania Election Results

Late yesterday, the Supreme Court rejected Donald Trump's attempt to overturn the Pennsylvania election results. The unsigned order did not indicate any dissenting votes or give a reason. The answer to Trump's request was a direct and straightforward "no."

Just before getting the bad news, Trump said: "Now, let's see whether or not somebody has the courage, whether it's a legislator or legislatures, or whether it's a justice of the Supreme Court, or a number of justices of the Supreme Court—let's see if they have the courage to do what everybody in this country knows is right." Actually, not everybody shares his views on what is right. In fact, the secretaries of state and governors of all the swing states don't share his view and neither do over a dozen judges who have thrown out nearly all of his lawsuits. Nor do the 81 million people who voted for Joe Biden nor a nontrivial fraction of the people who voted for him. His statement makes sense only if "everybody" is defined as "Ivanka, Jared, Rudy, me and possibly Melania, but I'm not really sure about her."

Trump appealed to the Supreme Court because he wasn't getting what he wanted from the Pennsylvania legislature. Twice in the past week, Trump called the speaker of the Pennsylvania state legislature and asked him to overturn the election results. The speaker, Bryan Cutler (R), said that he has no authority to do that. He also told Trump that he has no authority to call a special session of the legislature. Of course, Trump didn't accept that and just keeps on trying, or egging his allies on to keep trying (see below). (V)

Texas Asks the Supreme Court to Throw out the Election Results in Four Other States

In a move that can only be described as way beyond Hail Mary, Texas AG Ken Paxton has filed a lawsuit directly with the Supreme Court asking it to invalidate the election results in Georgia, Michigan, Pennsylvania, and Wisconsin, just coincidentally four states that Joe Biden won and which the respective secretaries of state have already certified.

Paul Smith, a professor at Georgetown University's Law School and an election-law expert said: "There is no possible way that the state of Texas has standing to complain about how other states counted the votes and how they are about to cast their electoral votes." In other words, Texas is going to have to make a case about how Texas is damaged by how other states voted. The relief that Texas is asking for is to throw out all the 20 million votes in the four states. Texas is also asking the Supreme Court to push back the date on which the electors vote (Dec. 14), even though that date is set by federal law and only Congress can change it. Paxton's hope is simply that the justices ignore the law and the Constitution and just do what the party of the president who appointed them wants.

Needless to say, the justices are not eager to catch this hot potato (see above). The Supreme Court has repeatedly made it clear that it does not want original jurisdiction on cases other than those involving a foreign country or those arising from disputes between the states. By framing the case as "Texas doesn't like the way Pennsylvania runs its elections" Paxton is trying to make it a dispute between the states. That's not what the folks who wrote the Constitution meant by "disputes between the states." A more typical case is California suing Arizona for diverting all the water in the Colorado River for local use so that none of it reaches California. In this case, California is definitely damaged by Arizona claiming "all the water is ours."

If the Court accepts this case, we expect Pennsylvania will sue Texas on the grounds that it doesn't like Texas' gun laws. Once states are granted the right to sue other states because they don't like the other states' laws, there will be no end to the suits. The Court is likely to refuse to touch the case and possibly note in the rejection that if there are election disputes, it is up to Congress to settle them. The buck stops over there somewhere. (V)

Biden Picks Fudge for HUD

The rumor mill was right this time. The past couple of days insiders were saying that Joe Biden would pick Rep. Marcia Fudge (D-OH) to be secretary of HUD. Yesterday, Biden did precisely that. Rep. Jim Clyburn (R-SC) has been pushing Biden hard to put Fudge in the cabinet and Biden gave him what he wanted, albeit not for Agriculture, which was his first choice. She is the second Black person to be named to the cabinet, the other one being Gen. Lloyd Austin (ret.) as secretary of defense. So at least two of the 15 actual cabinet officers are Black. That is 13.%, which is roughly the fraction of the population that is Black, thus fulfilling part of Biden's promise to have a government that looks like America.

Fudge is expected to reverse almost everything the current secretary, Ben Carson (who is also Black) did in his 4 years. These include reversing policies on fair-housing rules, protections for homeless transgender people, and rules that allow lenders, landlords, and insurers to discriminate in various ways.

Fudge has been in the House since 2008. Her district covers most of Cleveland and a bit of Akron. She is popular with Black members of the House and was elected to serve as chair of the Congressional Black Caucus in the 113th Congress. her district is D+32, so there isn't much danger of the Republicans picking up her seat when the special election is held in a few months. (V)

McConnell Proposes Leaving Two Thorny Issues out of the Coronavirus Relief Bill

Democrats and Republicans have been at loggerheads for weeks on a possible coronavirus relief bill. Democrats insist on there being aid for state and local governments in it. Republicans are absolutely opposed to this. Republicans insist on a provision that would shield employers from lawsuits if they do not protect their workers from the virus and one of them catches it at work. Democrats are violently opposed to this provision since they see it as an invitation for companies (e.g., at meatpacking plants) to not bother with protecting their workers.

Yesterday there was a breakthrough in the negotiations. Senate Majority Leader Mitch McConnell (R-KY) said that he would drop his insistence on shielding companies from liability if Democrats would drop their insistence on aid to states and local governments. This is the nature of compromise: You can't always get everything you want and sometimes have to accept that the other side will get something you don't want it to get. In this case, the Democrats will have to accept that state and local governments are on their own and the Republicans will have to accept that employers that provide unsafe working conditions can be sued over it. By focusing on the things that both sides do agree on, there is a chance there will be a bill before the end of the year.

Of course, now the Senate Republican caucus and the House Democratic caucus are going to have to agree to it and that may not be so easy. What hard-liners on both sides really want is that the other side gives in. That's why the negotiations have been going on for 6 months now. Still, this proposal does open the possibility of maybe getting a smaller bill through Congress before it adjourns for the year.

Oh. And then there is the matter of Donald Trump. He is still president until Jan. 20 at noon (although he doesn't know this). He has his own ideas about the relief bill, which are different from McConnell's and from Speaker Nancy Pelosi's. He wants to give everyone a $600 stimulus check in return for drastically lower unemployment checks. Democrats will never accept this. Is he trying to sabotage the negotiations in order to make the economy even worse in January? Who knows. If he really wants a bill, what he needs to do is just get out of the way and let McConnell and Pelosi work out a deal together. With McConnell's concession, this might be possible, although, again, getting both chambers to agree is not a sure thing. (V)

McConnell's Super PACs Are Spending $123 Million in the Georgia Senate Runoffs

Nobody can say that Mitch McConnell doesn't put his money where his mouth is. He really, really, really wants to keep his job as Senate Majority Leader. So he has now decided to throw an additional $43 million into the two Georgia Senate runoffs to try to save the bacon of Sens. Kelly Loeffler (R-GA) and David Perdue (R-GA). The money will go to a new PAC, the Peachtree PAC, that is named to suggest that it is somehow local to Georgia, which it is not. This is in addition to the $80 million he has already put into the two races. The advertising blitz will begin today. If you live in Georgia, you are advised to turn off your television until Jan. 5 at 8 p.m. All programming has been canceled to make room for attack ads day and night.

The total spending in the two races has already approached $400 million, with Republicans spending $242 million and Democrats spending $154 million. However, winning the money race doesn't mean winning the race for votes. On Nov. 3, half a dozen Democratic Senate candidates went down to defeat despite outspending their Republican opponents by tens of millions of dollars. Of course, those races can also be interpreted as showing how hard it is to beat an incumbent. Observers expect the final bill for the two Georgia races will exceed half a billion dollars in the end. (V)

Judge Orders NY-22 To Count All the Votes

You wouldn't think it would take more than a month to count all the votes in a congressional district race in which about 300,000 people voted. After all Georgia has counted all the votes statewide three times already. But NY-22 still doesn't have a winner. Maybe the cold weather up there by Utica slows everything down, but yesterday a New York Supreme Court judge, Scott DelConte, told the eight counties in NY-22 to please count the votes. It turns out that 1,500 votes still haven't been counted. Since challenger Claudia Tenney (R) is leading Rep. Anthony Brindisi (D-NY) by 12 votes, it does matter.

DelConte also said that all the county boards of elections should fix a host of errors they made, including handling contested ballots. Sticky notes are not supposed to be used. Boxes of uncounted ballots have popped up. It's a mess. DelConte has expressed his frustration with the oversight by local officials. While the decentralized nature of U.S. elections makes it hard for a foreign adversary to subvert an election, it also means that in some places the people running the election couldn't handle an election for president of a kindergarten class. The lawyers for both candidates will meet on Dec. 18, so the result may not be known before Christmas. And then there will surely be a recount and legal challenges. There is no suggestion of malfeasance or fraud here. It is simply Hanlon's razor in action. (V)

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