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The prospect of Donald Trump’s lawsuits

Are political and legal compromises possible amid the constitutional crisis in the United States?


Lawsuits in the current presidential race began long before November 3: by election day, both state courts and the Supreme Court had already heard dozens of cases concerning absentee voting procedures, rules for counting ballots, and other similar issues. It cannot be said that the totality of these decisions testifies to the unequivocal “bias” of the judiciary in favor of one of the two camps. Therefore, the path followed by the current president is fraught with a number of difficulties, both legal and political.

Donald Trump said that the issue of the admissibility of counting ballots arriving by mail after November 3 should be considered in the Supreme Court. It should be recalled, however, that US suffrage is a combination of federal and regional norms. In other words, the issues of permissible and unacceptable in the context of electoral practices are largely attributed to the jurisdiction of the states, which means that it is not always possible to involve the Supreme Court in the process – it all depends on the nature of the plaintiff’s claims. And even a violation of federal norms presupposes proceedings in the Supreme Court only after passing through lower instances.

At the same time, the likelihood that the courts will take seriously the arguments of Trump’s lawyers is very low: the provisions on absentee voting and multi-day counting of such votes constituted the normative reality within which voters acted. The subsequent recognition of this reality as unconstitutional would violate the principle of predictability and certainty of law. The courts may prefer to make decisions in such a formulation that, in part, they symbolically satisfy Trump’s claims, but will not affect the final result of the election.

For example, the courts may nevertheless recognize unconstitutional provisions of state legislation that allow the counting of votes received after the closure of polling stations, but at the same time indicate the need to respect the rights of citizens based on the legality of such a procedure at the time of voting. One way or another, it is impossible to formulate a general rule according to which events will develop if the courts decide in favor of Trump: there is simply no uniform procedure for recounting votes in the United States due to the significant legal decentralization of this federation.

By taking the case to the Supreme Court, Trump will put Republican judges in a very difficult position. The fact that six out of nine Supreme Court justices are appointed by Republican presidents does not necessarily mean that the decision on the legality or illegality of certain practices and procedures will be in favor of the current president. After all, it is the symbolic affiliation with the Republican Party that paradoxically makes it difficult to make any radical decision in favor of Trump, since such a decision will instantly be interpreted by the liberal public as evidence of the final elimination of the independence of the judiciary.

The fateful court intervention in the electoral process in 2000, which effectively brought victory to the Republican candidate, dealt a serious blow to the reputation of the highest judicial authority in the United States. Another such blow is not needed by any of the current composition of the court, which has long been accused of the intensively increasing politicization of its decisions.

In any case, all participants in the process, regardless of the branch of government to which they belong, will strive to complete the consideration of all issues by December 8, since going beyond this date is fraught with the launch of rather complex and ambiguously interpreted constitutional procedures that indicate a serious crisis of statehood. December eighth is an important date for the states, as Congress will be obliged to make any state decision on the electoral list made during that time.

The states are interested in making such a decision at almost any cost, otherwise, their population is actually deprived of the right to vote in the current elections: if contradictions at the regional level are not resolved by December 8 and any state does not finally resolve the issue of the electoral list, the obligation to determine the resulting voting in the respective state is vested in Congress. Therefore, North Carolina, for example, explicitly empowers the local legislature at the level of its legislation to determine the electoral list in the event of disputes unresolved before December 8. A radical scenario cannot be ruled out: specific states may try to do the same ad hoc, even in the absence of appropriate rules, directly applying the constitutional provision,

It should be noted that the voting results can actually be challenged in another way – already in January, in the process of announcing the results of the electoral vote at a joint meeting of both houses of Congress. If these results, for one reason or another, meet objections from representatives of both chambers, Congress at a special meeting may decide to exclude voters from the respective state in determining the final result. Such a procedure, of course, strikes a blow at both the legitimacy of the elected president and political stability in general, but it should not be ruled out in the current situation of a constitutional crisis that is acquiring quite distinct features.

In any case, all contradictions, both at the federal level and at the state level, must be resolved by January 20, otherwise, in accordance with current legislation, the functions of the president will automatically be entrusted to the speaker of the House of Representatives. However, such an unprecedented situation is possible only if the authorities and participants in the electoral process deliberately refuse to make any compromises, thereby violating the rather fragile logic of the constitutional balance. But this will mean that the country is on the verge of a new civil war.

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