Crisis of U.S. Electoral System
Role of Supreme Court in Intervening in Elections Before Votes Are Cast
January 6, 2021 storming
of U.S. Capitol
An important case pending at the Supreme Court involves a ruling by the Colorado Supreme Court that Trump should be removed from the ballot for engaging in insurrection on January 6, 2021. The Court heard oral arguments February 8 and could potentially decide the case before that state's primary March 5. There is widespread disinformation on the significance of the case, focused pro and con on whether the Supreme Court is pro-Trump, if January 6, 2021 involved insurrection, what the Constitution and 14th Amendment do and do not say about this, etc.
It is significant that the Supreme Court, already highly discredited, could effectively decide the presidential election by saying Trump is not eligible and removing him from the ballot across the country. Should it do so, the move would greatly increase the anger among many, including the cartel party faction backing Trump. It could possibly trigger a violent response in a situation where the rulers are desperate to prevent civil war and block the drive toward alternatives that favor the people. To avoid this, the Court could rule in Trump's favor by taking a more limited approach which leaves the issue of insurrection aside.
When oral arguments took place before the Supreme Court on February 8, the questions raised by the justices indicate a limited ruling. They focused not on insurrection but on Colorado's authority to decide on removing Trump from the ballot. This is also the way the Court posed the question: "Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?" This gives space to not rule on insurrection, while strengthening federal authority.
The case is an expression of contending federal and state authorities when it comes to elections. Existing constitutional arrangements, necessary for creating the U.S. federation of states, gives states authority for elections. Colorado, as a state, is pushing for states to decide election outcomes, not the federal authority.
Questions from the justices raised this issue of Colorado deciding. They also raised that Court precedent, from 1869, indicates that interpretation of the Constitution's insurrection clause must be left to Congress passing a law concerning it.
Justice Elena Kagan questioned the power of states in deciding candidates for nationwide elections, even though it is something they regularly do. "Why should a single state have the ability to make this determination not only for their own citizens, but for the rest of the nation?" Kagan asked. Justice Amy Coney Barrett similarly said if the Court upholds the Colorado ruling, it will as a practical matter decide the issue for all the other states.
Chief Justice John Roberts said that with a ruling favoring Colorado, "I would expect that a goodly number of states will say whoever the Democratic candidate is, 'You're off the ballot.' For the Republican candidate, 'You're off the ballot.'" He added, "It will come down to just a handful of states that are going to decide the presidential election. That's a pretty daunting consequence."
Justice Brett Kavanaugh asked Jason Murray, the lawyer for those asking to remove Trump, "What about the idea that we should think about democracy? ... Because your position has the effect of disenfranchising voters to a significant degree." To this Murray responded: "The reason we're here is [former] President Trump tried to disenfranchise 80 million Americans who voted against him."
The implication is that the Court will rule in favor of keeping Trump on the ballot because the states should not have the authority to decide. That authority is to rest with the federal government and Congress. A limited ruling would leave the issue of insurrection open, or to be decided by Congress, not the states. Such a ruling would be seen to undermine state-level authority to decide elections and to strengthen federal authority. It will not in any way contribute to resolving the crisis in which the U.S. electoral system finds itself. The factional fighting will become increasingly violent in the absence of peaceful means to sort out the problems it is facing.
Besides which, none of this addresses the current reality of an undemocratic and unequal system which promotes presidential candidates not chosen or wanted by the people. Many would vote "none of these candidates" if it was on every ballot. The fact is that under current state authorities, citizens are disenfranchised through numerous means, especially Black people, students and former prisoners. Ballots and ballot access in every state, including for president, are already different, making each vote unequal. Commonly a handful of states like Florida, Ohio, and Pennsylvania, decide the outcome of an election. Court cases such as this one hide the actual problems, and solutions, of an electoral set-up that disenfranchises and disempowers voters and denies the right to elect and be elected.
Colorado's Defense of State Authority
Colorado Secretary of State Jena Griswold also intervened in the case, in favor of keeping Trump off the ballot, by using the argument that it is up to each state to decide electoral matters. Her brief argued, "Petitioner Trump challenges Colorado's constitutional prerogative to exclude ineligible candidates from its ballots." She adds, "But just as Colorado cannot be forced to place on its presidential primary ballot a naturalized citizen, a minor, or someone twice elected to the presidency, it also should not be forced to include a candidate found by its Courts to have violated his oath to support the Constitution by engaging in insurrection."
In response to the justices saying a ruling against Trump would disenfranchise voters and have a "cascading" negative impact with various states deciding differently, she pointed out that the ballot, including which candidates are listed, is already different in every state. She said "we have to have faith in our system" and in the "institutions in place to handle those types of allegations." That system is state based with states deciding. Griswold asserted that role and authority.
It is part of U.S. constitutional arrangements for states to decide electoral matters, not the federal government. Having this power was part of why the original 13 states, which could have become independent republics, agreed to form the union and establish a federal authority. Undermining that relation heightens the civil war danger. The federal government has nonetheless increasingly intervened in various ways, such as with the Help America Vote Act after the Bush/Gore 2000 election. It required states to computerize election machinery and centralize results, and established a federal program to certify compliance. In keeping with giving executives greater authority, it gave the state Secretary of State, often appointed, much greater powers, including control of the voter rolls. Power to arbitrarily remove registered voters from the rolls has since been used by various states, including Ohio and Florida. Florida purged about one million registered voters. Both states are again being challenged in 2024.
The 2000 election was decided by the Supreme Court after the election occurred. Unlike Trump, who before and after 2020 challenged the results and the whole set-up, Gore conceded in the name of a peaceful handover of power. This is a fundamental need and role of elections, both as part of preventing civil war and to make the electoral process appear legitimate. Gore conceded even though he had won the popular vote. That reality, the Court's interference and Gore's failure to challenge it, delegitimized elections for the people. In the absence of a federal and court authority able to assert a means of reconciling the popular vote with the votes of the Electoral College which declares the election's outcome, the election was seen to be illegitimate and anarchy was raised to authority. Anarchy is a state where every individual, especially those with power, is sovereign and no longer obeys any authority. The clash between Conditions and Authority is such that anarchy is raised to authority. This includes the anarchy we see today of the contending authorities at the federal and state level, not only for elections but for immigration, health care and education as well.
A ruling in favor of Trump may well leave the issue of insurrection aside but serve to strengthen the role of the federal government in elections, further increasing conflicts between the contending federal and state authorities.
A limited ruling for Trump that does not decide the issue of insurrection also leaves open appeals to the federal courts to deny Trump access. Michigan and Minnesota for example, ruled Trump could remain on the primary ballot but left open removing him from the general election ballot based on insurrection.
It is also the case that leaving the issue of insurrection open and undefined, or up to Congress, further strengthens presidential police powers. Expanding these powers is something Trump, Biden and the rulers as a class are pursuing as necessary to maintain rule by the oligarchy over the entire country.
Trump, for example, has called for use of the Insurrection Act, where the president can use the military against demonstrators, strikers resisting injunctions or those blocking shipments to Israel, etc. Biden, whose forces back many of the state cases against Trump, could use executive powers to also brand demonstrations as insurrection, just as laws claiming material support for terrorism are now being used, especially against those supporting Palestine. Actions where police target protesters occupying state capitol buildings, for example, or the federal House or Senate buildings, already occurring, could also be considered insurrection. Actions at the border, where Biden wants power to close the border and troops are already present, could be branded in such a manner. By bringing the issue of insurrection to the fore, it opens possibilities for its use against the people to repress the rights to speak, assemble and organize.
Occupation of California
state legislature demands it take a stand for ceasefire, January
4, 2024
Also of significance in looking at Court cases in the U.S. are the relations between the U.S. state and the people. It requires acknowledging the role of the Supreme Court as an arm of the executive power, operating in conditions of intense factional fighting among the rulers. Its role is to serve the U.S. reason of state at all times, which means preserving the union which, under current constitutional arrangements and in light of fierce factional contention for power, requires strengthening the Office of President, not the state powers.
When slavery had to be upheld and civil war prevented, there was the 1857 Dred Scott ruling, declaring enslaved people were not human and had no rights, and affirming use of slave patrols in non-slave states. It helped prevent civil war, which subsequently broke out anyway in 1860. In the 1950s when the ruling class of the U.S. needed to integrate the workforce for mass industrial production, and existing segregation stood in the way, the Supreme Court ruled in favor of desegregating schools in its 1954 Brown vs. Board of Education ruling. It again acted as an arm of the executive, supporting and strengthening the Office of President. There are other factors involved but what is key is looking at the needs and interests of the U.S. ruling class as a whole to preserve the union and actions of the Court to serve these class interests. The states, and their executives, act in the same way at their level.
The existing arrangements and relations cause the clash of narrow private interests and the authorities established when the U.S. Constitution was ratified 236 years ago under very different material conditions. At the federal level, there is a division of labor between the president, courts and Congress, but all are duty-bound to preserve the power of the U.S. state, which means preserving the union. This is increasingly difficult given the intense factional fighting, states able to become their own countries and refusal at all levels to modernize democracy.
Today, the failed arrangements, including elections and the courts, no longer resolve conflicts among the rulers, including between the contending authorities within the executive bureaucracy and between the federal government and states. Using the courts to rule on the matters which come up is not sorting anything out. It is not only serving to sharpen the contradictions but, more importantly, reveals the need to renew the reason of state on the basis of governing arrangements that empower the people to govern and decide.
This is what is pertinent in the case before the Supreme Court, not the pro and con Trump debates.
This article was published in
Volume 54
Number 13 - February 23, 2024
Article Link:
https://cpcml.ca/Tmlm2024/Articles/MS54132.HTM
Website: www.cpcml.ca Email: editor@cpcml.ca