Senator Ted Cruz (R-Texas).
Senator Ted Cruz and a group of ten other GOP Senators have issued a statement calling on Congress to withhold confirmation of the 2020 election results unless Congress first sets up a commission to deal with the unsubstantiated allegations of Investigate President Trump for “election fraud, violations and lax enforcement of the electoral law” and other voting irregularities. “The statement claims that the commission is needed because the courts allegedly failed to deal with these allegations:” Ideally, the courts would have heard evidence and resolved these allegations of serious electoral fraud. Twice the Supreme Court had the opportunity to do so; twice the court refused. “
It is correct that the Supreme Court refused to hear these claims on the merits instead of dismissing them on procedural grounds. But, as GOP Senator Pat Toomey points out, “Cruz and his allies do not recognize that these allegations were heard in courtrooms across America and were not supported by evidence.”
Toomey is right. The Trump campaign and its supporters have had numerous opportunities to resolve these issues in both state and federal courts. And they have repeatedly either provided no evidence of fraud or other illegality, or – as in the case of Sidney Powell’s “Kraken” charges – the “evidence” was so risky that it was quickly laughed at out of court.
Consider this third circuit decision of the U.S. Court of Appeals, in which Trump-appointed Judge Stephanos Bibas drafted a unanimous panel statement stressing that “making an election unfair doesn’t make it so. Charges require specific allegations and then evidence. We have neither here. ”Bibas also noted that the Trump campaign did not produce any evidence or even allegations of fraud when they got the chance. Or consider this more recent Seventh Circle decision in which Judge Michael Scudder, another Trump-appointed representative, came to similar conclusions (again on behalf of a unanimous panel). And there are many more examples of the Trump campaign, the “Kraken” lawyers and other Trump allies filing these types of cases in a variety of courts and losing on the matter.
Conservative right-wing commentator Andrew McCarthy, who has supported the Trump administration on many legal issues throughout the president’s tenure, notes that the campaign has repeatedly missed opportunities to bring evidence of election fraud to court, most likely because it did not to have . As he put it in an article describing a case Trump filed to reverse the results in Wisconsin:
There wasn’t any. Although the country was told for weeks that this was the most rigged election in history, the election campaign made no sense in calling a single witness. Despite the opportunity to hear before a Trump official who agreed to give the campaign ample opportunity to prove its case, the campaign said, “Don’t worry.”
The Cruz Declaration seeks to create the impression that just because the Supreme Court failed to address these issues, it means that no court has done so. That’s just not true. The Trump campaign has had ample opportunity to sue its election fraud and other electoral claims on the matter. To the extent that they have not succeeded, they have not produced any evidence of fraud on the occasion.
The vast majority of cases – including the vast majority of electoral disputes – never reach the Supreme Court. Instead, they are decided by federal or regional courts. Election disputes related to state law (like many of the Trump filings) are usually settled by the latter.
I can understand how someone who knows little about the legal system can assume that only the Supreme Court can rule on electoral claims. But Ted Cruz is a graduate of Harvard Law School and a former Texas attorney general. He knows better. In fact, every US Senator should know better.
Either Cruz is remarkably ignorant of the history of the 2020 election litigation (and thus somehow doesn’t know that Trump ruled, among other things, in court), or he’s trying to mislead the public. Neither of the two options speaks well for him.
Cruz’s proposal for a commission of inquiry has many other flaws. Perhaps most importantly, however, the courts have already considered the issues they would investigate. And as Cruz himself admits, the judiciary is indeed the right forum for deciding on such questions. Once you realize that the Supreme Court isn’t the only court in the country that can rule on electoral disputes, the logic behind Cruz’s proposal breaks down.