From The New York Times:
The justices took just hours to reject Trump’s bid to meddle in the election.
Adam Liptak is the chief legal correspondent and host of The Docket.
On the day before the midterm elections that would transform American government, the Supreme Court also did something extraordinary. In the space of about seven hours on Monday, it evaluated and rejected an emergency request from the Trump administration to let it meddle in how ballots were counted in California.
The court did so without even asking the other side for a response, something I don’t recall ever happening in connection with an emergency application from the Justice Department. The court’s order, issued Monday evening, was just one sentence long, and no member of the court had anything to say in dissent.
The court’s merciless rebuke reminded me of its treatment of a lawsuit filed by the state of Texas in 2020 after President Trump lost the election that year. It asked the justices to throw out the results in four battleground states carried by Joe Biden.
But even that litigation, which election law experts called a brazen stunt, took four days to play out. The court asked the defendants for a response, and it received more than a dozen friend-of-the-court briefs and requests to intervene, including one from Trump.
The 2020 decision, moreover, included a few words of explanation — the majority said Texas did not have standing to sue. It was also not quite unanimous. Justice Samuel Alito, joined by Justice Clarence Thomas, issued a brief statement on a technical point.
But it was nonetheless a comprehensive rejection of a wild legal theory from Trump and his allies. The justices were not willing to let Texas tell other states how to run their elections.
Monday’s order had that same music, except that it was directed at an effort by the executive branch of the federal government, which has no independent constitutional role in the conduct of elections.
Solicitor General D. John Sauer is a sophisticated lawyer, and he surely knew that his application was hopeless. Indeed, he distanced himself from its very premise. “This office has been informed,” he wrote, that the administration had discovered 20,000 people registered to vote who are likely not U.S. citizens.
Variations on that odd phrase turned up two more times in the 22-page filing. Sauer, in other words, refused to vouch for what officials elsewhere in the administration were telling him.
And for good reason, it seems, given reports that the administration’s data was deeply flawed.
“Would you agree there’s a high error rate?” Judge Trina Thompson of the Federal District Court in San Francisco asked a Justice Department attorney on Monday, The Associated Press reported.
“That’s a fair statement,” the lawyer, Kenneth Kao, replied.
Why, then, did Sauer file the application? One likely reason was that he had a demanding client. Trump must have insisted on running to the court, leaving Sauer to figure out how to do that without inflicting permanent damage to his own credibility with the justices.
A second possible reason for the last-minute application was a cynical calculation. Had the court worked on its usual schedule, the headlines would have noted only the fact of the filing and perhaps the court’s call for a response before polls closed, sending the message that something serious was afoot while the nation voted.
The court’s quick action — a “mercy killing,” in legal scholar Rick Hasen’s phrase — sent the opposite message.
Anticipating voters’ stunning repudiation of Trump on Tuesday, the court’s order the previous evening seemed to signal the start of a new era. It was just one sentence long, to be sure, but its focus and speed suggested that the justices had run out of patience with a president to whom they had long granted the benefit of the doubt.
That court’s message was an echo of what Judge Stephanos Bibas of the Third Circuit said in a 2020 opinion rejecting a challenge from the Trump campaign to the election results in Pennsylvania that year.
“Free, fair elections are the lifeblood of our democracy,” wrote Judge Bibas, a Trump appointee. “Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”
“Ballots, not briefs,” he added, “decide elections.”
