Courts and Elections

 

The election we just had ended up with a number of cases brought to state supreme courts and to the US Supreme Court. That court declined them. The state courts were the right place at least. States have the right to look at the election in their state, the certification of electors and so on.

The Supreme Court hinted at some rules they have about elections. They stated that states should not legislate new laws regarding elections in an election year. That may be what they think, but since there is no US law specifying how to run elections, I don't see that they could demand even that.

States have set up elections with the funds they have. Bureaucrats and temps hired to count votes run the election itself. States can give their own official a lot of latitude in situations like a pandemic. The state officials want elections to be done as fast as they can, because the politicians at the state legislature have to be seated and sworn in as well. Whether a mail in vote needs a witness and such details are up to the state.

The US Constitution

The constitution is very short. It says we should have a Supreme Court, and that it should deal with federal law and with matters between states.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

 In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

 The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

And that is all it says. There is no role given to the Supreme Court dealing with any election. There are amendments to the constitution and various cases that were brought to the court. This catalog of decisions becomes case law. According to case law, for example, the court decided the Second Amendment applies to citizens. It is a single line, and it does indeed say the thing about well organized militias. To me it appears to deal with state militias. The carrying of guns, or the permission to do so, was at the time a state internal matter. people in the 1700s and 1800s did not think it was a federal matter.

Recent rulings on campaign finance had the court allow unlimited spending on advertising for a candidate, based on free speech guaranteed by the First Amendment.

Bush vs Gore

The supreme court interfered here. They decided to stop a recount of certain counties based on "equal protection." They were considering the votes of those whose ballots were not recounted. There was also a time issue. They wanted the Electoral College (not part of the constitution, only electors are mentioned) to meet at the normal time.

If Florida had not got the recount (ordered first by state courts, properly) finished, they had options. The constitution says states decide about electors. The governor and legislature could set up a vote on who won. The majority party would then get to claim the electors for their party. This is an acceptable solution and the Supreme Court should not have been able to stop that.

The Supreme Court clearly did not want the election to go to the house and senate. Who would have won then? Probably Bush. This has happened three times, and would happen every time there are three candidates and a winner is not found. The Electoral College is in place just for such situations. Normally the least hated of the three candidates is picked by the electors by however many rounds of voting it takes.

FBI and The Police

The FBI is a federal agency. It deals with federal crimes. Those do not include voting fraud. The voting machines are property of the states. If a foreign power tried to hack voting machines or elections, the FBI would need state permission to investigate it. If multiple states were involved, it might be easier. 

The police, which some people think are to be defunded or reorganized, belong to the states. The federal government can only deal with the police using funding they direct yearly to law enforcement. What the police do is none of the business of Congress. They can cooperate with the FBI, which takes over in certain cases, such as kidnappings. The federal forces can also deal with guns, as with the ATF. Taking over a National Wildlife Refuge, as happened in Oregon, is also a federal case.