There is soon to be an explosion of litigation, under the moniker Trump v Biden, the purpose of which is to alter the outcome of the November 3, 2020 US Presidential election. What is this litigation about, and how can a lawsuit change the outcome of a democratic process? To understand these questions, one needs to delve deep into the federal system of U.S. government, and the very unusual way that the various states of the United States elect the federal President.
By Matthew Parish
To understand what is going on, the starting point is the U.S. court system. The U.S. system of government has two types of courts, along with two types of every other sort of government institution: state courts, managed by the states; and federal courts, managed by the federal government in Washington, DC. Very roughly, state courts determine state issues; while federal courts determine federal ones. If only it were that easy, as we shall see later on in this essay.
The next point to understand is that under the so-called ‘electoral college’ system, election of the federal President of the United States was never intended, by the so-called ‘Framers’ (the people who drafted the US Constitution, a series of delegates from different states in the late 1780’s whose deliberations were recorded in a famous historical-constitutional text called ‘The Federalist Papers’), to be a matter of direct democracy. It just became one later.
The original idea was the President would be chosen through an indirect system of democratic appointment: the electorate of the states would vote for representatives in their legislatures, and representatives of the state legislatures would then sit down together at a conference in December every four years and decide who should be selected as the President. Therefore there wouldn’t be such a thing as a U.S. General Election at all.
Accordingly Article II of the U.S. Constitution provides that the several states shall send a number of electors, equal to the number of the state’s Congressional Representatives in the House of Representatives, plus the number of the state’s senators – always two (so there are three electors for Alaska – it has one Congressperson and two Senators; 55 for California, it has 53 Congresspersons and two Senators), to the electoral college in December prior to the inauguration, those electors being selected in such manner as the several states’ legislatures may determine. The original idea was that each state’s legislature would likely appoint state electors that roughly reflected the division between the number of seats different political parties held in each state legislature. That is what The Federalist Papers tell us that the Framers had in mind.
But actually it didn’t work out that way, because the states soon discovered that their voters didn’t want this system of indirect democracy and instead wanted to vote themselves, directly, for the President. Hence in order to give effect to their voters’ desires, In practice every state’s legislature has ‘determined’ that the selection of electors shall be decided by universal suffrage of all the voting members of the state.
However this universality breaks down in the details. Persons excluded from voting may vary from state to state (age of majority; whether convicted felons may vote, etcetera). Most importantly, and this is very important for the purposes of understanding why the federal courts are ultimately going to decide the 2020 US General Election, each state has different ballot mechanics. So no two states use the same format of ballot paper. Some states’ ballot papers are extremely simple (Congressman, Senator if it’s your turn – each state has two Senators elected out of step for six-year terms), President, with boxes to cross); while some states have ludicrously complicated ballot papers that are several pages of A3 and where you can barely work out how to vote without substantial concentration.
Many states require you to use a little press stud type machine to perforate the ballot paper so it can be read by some ancient piece of paper counting technology that often goes wrong. Then there are the notorious ‘ID’ requirements. What sort of ID, if any, do you need to take to a polling station? Perhaps astonishingly by European standards, this can vary by county (sub-state governance units).
Then there are the rules for postal ballots. The controversies here tend to be threefold: (a) how do you prove the ballot paper was mailed on time (given the date a voter places on a ballot paper could easily be fraudulent, do you rely upon the date on a postal frank on the envelope?), and what do you do if the postal frank is illegible; (b) is it acceptable to mail the ballot paper on polling day so that it arrives after polling day but is still counted; and (c) how if at all do you prove the ballot paper signature is genuine? Every state has varying answers to these vexing questions.
These are the things that Trump wants to litigate over. His allegations of ballot fraud are bound up assertions that outcome-determinative numbers of postal ballots for particular states have no postal franks; late postal franks (i.e. the date of the election); no verification of signature; and/or suspicious counts (e.g. some postal ballots received are asserted to contain 100 pc to 0 pc votes for Biden over Trump, something which if true would appear extremely suspicious to any seasoned election observer).
So there will be litigation. And no sensible person can deny that where a candidate has grounded claims of ballot fraud, he or she ought to be permitted access to the courts to resolve his accusations or concerns. This is possible in every civilised country. Argument about these issues in the United States might be regarded as the natural habitat of state courts. But that is often wrong. What makes this litigation so fascinating is that it will almost certainly be heard in the federal courts, where Trump has appointed a lot of the Judges in the last four years. Why is that?
The federal courts have an exclusionary jurisdiction. They have the right – indeed, obligation – to ‘remove’ a case from state courts to federal courts and/or to receive a case initiated in federal court if, and only if, one of three criteria is met. And they’re all facially narrow but varyingly interpreted by the federal courts. They are, very briefly and inaccurately summarised:
- The dispute involves a ‘federal question’.
- The dispute is between citizens of different states (or between different states) – so-called ‘diversity jurisdiction’ (intended to prevent ‘home town justice’).
- The dispute relates to Ambassadors, Consuls or Admiralty.
These three criteria for federal jurisdiction were written into Article IiI of the Constitution by the Framers in the most cryptic of language typical of a negotiation between diplomats from different states, and who then also proceeded to write substantial commentary (in ‘The Federalist Papers’ and elsewhere) about what these rules meant in practice. The federal courts have been debating the issues ad nauseam ever since.
A good proportion of all Supreme Court jurisprudence ever since has indeed involved discussion of what these rules entail in all sorts of different cases. To the student, it rather appears that every case involves a federal question if your lawyers look hard enough for one; while the so-called ‘diversity jurisdiction’ has created endless questions about drunk Californian drivers drinking in Nevada bars and then having car crashes in different states; the question then is what is the determinative criteria of domicile for the various drivers involved.
Diversity jurisdiction in particular turns out to be ludicrously complicated, mainly to minimise federal court docket pressure in a system in which a very high proportion of litigants are from different states. So it may turn out that two litigants who thought they were from different states actually aren’t, by reason of judicial contrivance to identify one’s statehood using different criteria in different cases, the purpose being to find identity of statehood of litigants in a maximum of cases and thereby divest the federal courts of jurisdiction in respect of cases they don’t have enough judicial resources to try.
The reasons federal jurisdiction questions have become so fought over (in almost every case one party will prefer federal courts to hear the claim over another) are (a) federal judges are regarded as more professional than state judges; (b) state judges are regarded as more pro-plaintiff than federal judges (e.g. trials presided over by state court judges will result in higher damages awards); and (c) state courts are organised by county, while federal courts are organised by district; counties and districts may have Judges that reflect different political perspectives. This is particularly so given the ‘blue slip rule’ in the United States Senate, to the effect that a ‘no’ vote from a Senator of the state where the federal Judge will sit will or may count as a veto (although the precise mechanics of how Senate ‘blue slips’ work have varied a great deal during the history of the Senate).
In other words, simply put, Trump cannot easily appoint conservative federal Judges to sit in New York State, because New York has two Democrat Senators who will (try to) veto a Trumpian Judge. This applies to federal appeal court judges also (although again the rules are varying and complex), who sit in ‘circuits’ dotted across the country and are, like all federal judges, nominated by the President and confirmed by the Senate.
Hence the question of which court you litigate ballot fraud issues in is all about getting a Judge not just more likely to favour you politically, but also more likely when you start going through the subsequent appeals process to sit under an appeal structure more likely to be in your favour. So for example the Ninth Circuit Federal Court of Appeals, that sits in San Francisco and hears appears from federal Judges in California, Nevada, Oregon and other western Democrat-majority states, is notoriously liberal in the U.S. sense of the word; whereas the Seventh Circuit that sits in Chicago and hears appeals from federal Judges in Illinois, Indiana and Wisconsin, is well-known for being very balanced and apolitical, and extremely rigorous. Some of the best case law in the U.S. is made in the Seventh Circuit. (Discalimer: this author’s supervisor of his doctoral thesis sat on that court.)
In the United States, all appeals lie of right except to the SCOTUS (the Supreme Court of the United States), that decides which cases it wants to hear on appeal from the federal circuit courts or the state Supreme Courts (whose jurisprudence can be mixed). Four out of nine Justices of SCOTUS may grant ‘certiorarti’ (a certificate permitting an appeal a full hearing before SCOTUS). Then five Justices out of nine must vote the same way for the appeal to be successful.
If you know that your case may well ultimately be heard by SCOTUS (as with Trump v Biden), you will want to pick your appellate route to go via the appeal court most likely to write a really good majority opinion in your favour that the Supreme Court Justices will be most likely to follow and say ‘yes that looks fine’. That is because the Supreme Court’s role is not general appellate review. Instead it is (a) resolving disputes between the circuits; and (b) where a split lower court has raised an issue of general public importance, to decide it. So as a litigant, your stop just before the US Supreme Court is really important. A good Circuit Court opinion is less likely to attract the four votes out of nice to achieve SCOTUS certiorari.
If you are trying to go the federal route in your ballot paper impropriety litigation – Trump’s Attorney-General Barr is in now advancing voter fraud allegations in the federal courts in a way that may assist President Trump – then you’re not just picking your federal question carefully; you’re picking your District Court carefully because you will want the right appeal court judgment beyond there. Moreover if your District Court thinks a federal question is really something to do with some other district not the one where you chose to start your action, it can and do transfer cases to another district. You need to avoid this possibility, which could lead to an unpredictable result.
Also if you start litigation in a district federal court and the court decides it doesn’t have federal jurisdiction, it will typically transfer it down to the local state court, whatever that may be (Illinois state courts do not have uniformly superb reputations, for example; so if you start your action in one of the federal district courts for Illinois, such as in Chicago, then you had best be pretty certain of your federal jurisdiction grounds).
So you need to be extremely careful in deciding how and where to start your action.
Let us now consider the legal action Trump is taking to challenge the 2020 U.S. General Election result. Trump is going to sue, or has sued, several state officials for counting votes improperly. He has two sorts of argument at his disposal. One is that state procedures weren’t complied with, whatever those may have been in each case. The other is that federal constitutional principles mandate procedures that the states haven’t been following. The following Amendments to the US Constitution all have things to say about how elections must be run, and they all have substantial quantities of SCOTUS jurisprudence about what they require or prohibit:
- 12th Amendment: prescribes a series of detailed rules for how the electoral college works.
- 14th Amendment: prescribes a series of detailed rules providing for ‘due process’ in voting: that is to say, all people are entitled to certain basic minimum guarantees in the way vote, subject to interpretation and development by the federal courts.
- 15th Amendment: mandates the federal government to take actions to prevent persons being denied the right to vote on various discriminatory grounds relating to race.
- 19th Amendment: mandates the federal government to take actions to prevent persons being denied the right to vote on various discriminatory grounds relating to gender. (Female suffrage).
- 24th Amendment: mandates the federal government to take actions to prevent persons from being denied the right to vote on various discriminatory grounds relating to the payment of taxes.
- 26th Amendment: mandates the federal government to take actions to prevent persons from being denied the right to vote on grounds related to discrimination related to a voter’s age.
Each of these Amendments have been interpreted to prohibit ‘indirect discrimination’: that is to say, measures that are facially non-discriminatory but in their application have the effect of making it harder for a protected group of voters to register to vote.
It is not easy to summarise what all these Amendments are ‘really’ about (i.e. why they were enacted at the time they were and how they have been developed in case law), because each one was enacted in a specific historical period of the United States in response to a perceived malice. A number of those Amendments were about federal courts supervising southern state government to suppress discrimination against black people in the aftermath of the U.S. Civil War. But not all of them had that genesis.
Let us mention just one example. In Bush v Gore, the Supreme Court held that the Florida State legislative rule that late mail-in ballots are included in the statewide count provided that they are dated on or before the date of the General Election, potentially violated the ‘due process’ clause (the 14th Amendment), because it was impractical to test a date recorded on the face of a postal vote – the person could lie, and then have it hand delivered to the relevant ballot counting address. Therefore such a voter may in theory get an advantage over ‘in person’ voters because he might cast his ballot after the polls had closed and hence he has an informational advantage in knowing the results of exit polls before he votes.
The ‘postal frank’ solution to this potential 14th Amendment violation (as to which SCOTUS may or may not again follow as precedent) arguably doesn’t work because lots of postal franks are illegible or not even there at all. And so on and so forth.
The question of what ID you need to take the polling station to vote has been determined as a federal question because (very basically) black people are less likely to have any government-issued ID (the only sorts of ID accepted were traditionally driving licences and passports; most Americans don’t have passports; far fewer black people have driving licences than white people) – all these issues are tied up with discrimination against blacks in the South after the end of the Civil War, using procedural techniques to prevent them from voting. This type of reasoning led to a rash of legislation requiring states to provide free government ID to anyone who asks for it, irrespective of one’s ability to drive.
The issue of how to prove a signature on a ballot paper is genuine remains outstanding as a matter of federal constitutional law; but presumably the way you make it a federal question is to say that the way states actually verify signatures is by state ID’s and this discriminates against black people somehow. One might suppose the argument to be that if a person knew in advance of the election that they needed to have applied for and obtained a state ID bearing their signature in order for their postal votes to be considered valid, then that would be acceptable; but nobody actually told anyone that this was necessary.
Given the huge number of postal ballots this 2020 General Election year, due to Covid, widespread exclusion of postal ballots might be asserted to be unconstitutional discrimination against black people (or persons without higher education or whatever the group may be, depending on the analysis of the ballot papers in the eyes of the attorneys) and therefore the debatable ballot paper types (e.g. postal votes – majority Democrat) need to be excluded. Alternatively one might argue that counting postal ballots with unverified signatures is unconstitutionally discriminatory because it discriminates against some group or other. Everything turns on the statistics, for how you run the argument.
Bush v Gore established that (a) if a state unconstitutionally screws up a section of ballot papers, or just can’t count a district in time for the December deadline (because, in that case, the ballot paper counting machines didn’t work), then (b) you try to count things properly if you have enough time by the December deadline; (c) if a proper recount won’t solve the problem because it takes too long, then you must exclude the unconstitutional section of the ballots; and (d) the electors going to the electoral college in December are determined by the number of ballots constitutionally counted by the deadline and you can’t just keep counting or working on the problem of how many electors go to the electoral college by counting votes after that point. The deadline is absolute.
Bush v Gore is generally regarded as as sound piece of SCOTUS jurisprudence, and we should expect it to be followed.
What Trump v Biden will presumably be about is an attempt by Trump to exclude in the swing states slews of ballots (mostly mail-in ballots) on the grounds of unconstitutionality. Mail-in ballots being majority Democrat, excluding them as a preliminary measure pending litigation may, under the principles of the SCOTUS case Bush v Gore, compel the states to appoint electors by the December deadline different from those called by the media networks; and these exclusions may be outcome-determinative.
Trump will presumably start his action in Federal District Court in a swing state asserting federal jurisdiction on federal question grounds (you don’t need every question to be federal – only one – then the federal court can decide all the questions in the case, even those that are pure questions of state law), in a District where Trump himself has appointed the Chief Judge of the District Court (who is responsible for docket allocation) and/or where appeals lie to a federal court court where Trump has appointed a plurality of the Judges. This author does not know off-hand which court is best for him to do this. But one may suspect that he will start this action in one of the Federal District Courts in Pennsylvania.
For SCOTUS to grant certiorari (their consent to hear an appeal), you need four Judges out of nine. That is why confirmation of Amy Barrett to SCOTUS after the death of Ruth Bader Ginsburg was so important before the election. Roberts, Chief Justice, has ceased to be as conservative as was imagined he would be when he was appointed by President George W. Bush. So Trump’s four Justices are Barrett, Kavanagh, Gorsuch (he appointed all of these) and Thomas (the most conservative member of the Court). Once the case is before SCOTUS, Alito (the sixth conservative Supreme Court Justice) will vote with these four and Trump won’t even need Roberts.
Alternatively, Trump wins before a conservative bench in a federal circuit court and Biden cannot find four votes for certiorari, because six out of nine SCOTUS votes are conservative. So Trump wins on a Circuit Court judgment.
That’s how Trump wins the 2020 election, if he does. It should not be ruled out.
Matthew Parish is an international lawyer and scholar of international relations based in Geneva, Switzerland. He is an Honorary Professor at the University of Leicester; was elected as a Young Global Leader of the World Economic Forum; and has been named as one of the three hundred most influential people in Switzerland. An expert in UN reform, he is the author of several books and over three hundred articles. www.matthew-parish.com
The views expressed in this article do not necessarily reflect those of TransConflict.