With every day that Donald Trump drags the federal government further into chaos, his opposition tries to think of ways to remove him without relying on Congress. As Democrats, liberals, and progressives, it has become second nature for us to turn to the Court to protect our rights, so it is not surprising that some petitioners have asked the Court to solve this problem. Some less than reputable “news” organizations on the Left , like Occupy Democrats and Politicususa (yes, we resisters have our own fake news), have recently reported that the Supreme Court has “advanced” a petition to nullify the results of the election. Now, the Supreme Court hasn’t “advanced” anything, and the petitioners’ legal argument is pretty meritless, but it is still worth asking: should we be looking to the Court to save us from Trump?
The answer is: absolutely not. For one thing, the Court lost a hell of a lot of credibility when it installed George W. Bush as President in Bush v. Gore, and a repeat won’t improve anything. For another thing, the ongoing Russia investigations involve the Trump campaign’s collusion with Russia to influence voters and spread disinformation, not hack the actual mechanics of an election. The remedy for criminal conspiracy to hack the DNC is to kick the criminals out of office, not nullify an election that was properly conducted. We can’t expect the Court to repeat its Bush v. Gore mistake and nullify an election when it was the American people, not the electoral process, that were hacked by Russia.
In the interest of self-preservation, the Court can’t touch this
The Court really screwed the pooch the last time it helped picked a President, and it behooves us all to avoid asking the Justices to do it again. To recap Bush v. Gore, there were manifold voting irregularities in the State of Florida during the 2000 election, and the Gore campaign, behind by about 500 votes, asked for recounts in several parts of the state. The George W. Bush campaign tried to stop the recounts, and there were conflicts between the Republican Secretary of State for Florida, who worked for Jeb Bush, and the Democratic Supreme Court of Florida, sending the suit up and down the state courts and to the US Supreme Court. Ultimately, the case ended in the Supreme Court for a second time, and the Court stopped all recounts, in one of the most controversial decisions in recent history. This decision was widely seen as an example of unelected judges imposing their personal political opinions on the electoral process. Justice Sandra Day O’Connor, the swing vote on the case, has said the Court shouldn’t have taken the case. Justice Stephen Breyer has said that it damaged the Court’s credibility, though not permanently. Preserving Court credibility is crucial for anyone interested in resisting Trump. It is against our interests as opponents of the Administration to ask the Court to compromise itself.
Even if the Court would hear it, there isn’t a good case for nullification
There are two major problems with the idea of judicial nullification of Trump’s election based on Russian hacking. The first problem is that the Russians didn’t hack the electoral process; they hacked the people voting in the electoral process. The second problem is that voters don’t elect the President of the United States, Electors do. Those Electors are supposed to be the stopgap against demagogues hoodwinking the people into bad decisions.
The Russian government did not hack the hardware or processes of the election in the states, like voting machines, computers, or other data management tools. The legal process of counting votes appears to have proceeded properly in all fifty states and the District of Columbia. By hacking the DNC and John Podesta’s e-mail account, Russia attacked a private political organization and a private citizen’s personal e-mail account, and disseminated controversial information that targeted the decisionmaking of individual voters. Russia hacked us, the American public, not the legal process.
The Court can’t nullify an election based on the fact that voters believed Russian propaganda. The Founders did predict that voters might be influenced by demagogues, or even by disinformation. Fake news and airing dirty secrets ain’t new, and Tom Jefferson would swear to you those Election 1800 broadsheets about Sally Hemmings were libel! James Madison et. al. created the much maligned Electoral College to act as a check on uninformed democracy. Despite wide-ranging discussion of so-called faithless electors turning the election for Hillary Clinton, the Electors cast their votes largely as expected, and we got Donald Trump. Unless someone produces evidence that Russia actually interfered with the mechanics of voting -changing the tallies, inventing voters, or stuffing ballot boxes – the Court can’t nullify anything.
Trust the Constitution, support the Press, and impeach Trump for his lies
The Justices don’t need me to tell them not to take this case – I’d bet my bottom dollar they will not. However, I do think it’s important to think about why the rest of us shouldn’t be asking them to in the first place. The Constitution lays out one remedy for removing criminals from executive office: impeachment. Currently, the Press is digging for every connection Trump has to Russia, every lie, every dirty trick, and hopefully his tax returns. There is a profusion of leakers in the intelligence community and the Executive. The path is clear – we need to amass as much information as possible, help the legitimate Press expose Trump and his cronies, and take back Congress in 2018. We, as Americans of both political parties, have done enormous damage to our Republic in the past by pushing one branch of government to impinge on the authority of another to achieve our ends. The Court is the only branch of government consistently acting as a check against Trump. We should not ask it to compromise itself because we are scared of Paul Ryan and the Turtle.