Leibowitz on Trade: The Rule of Law in 2020

The Trump campaign and its allies have approached the courts to overturn the presidential election no less than 30 times, and none has succeeded in altering the outcome in any state. Wisconsin’s Supreme Court still has one case pending, which was argued yesterday. A decision is widely expected no later than tomorrow morning.

Why tomorrow? Because tomorrow is election day—the real election, where the members of the Electoral College meet in 50 state capitals and the District of Columbia to cast their votes. Once the votes are cast, the results will be transmitted to Washington in accordance with detailed requirements regarding delivery and state retention of duplicate original certificates.

The votes will be counted on Jan. 6, 2021, by the Senate and House of Representatives sitting in joint session, with the vice president presiding.

While the Jan. 6 joint session is usually ceremonial, this time it may be different. If one Senator and one House member submit an objection, the two Houses must retire to consider the objections. This could happen. But the rules of the game require that both Houses vote to approve the objection or it will not succeed. There is essentially no chance that the House and Senate will agree on the validity of objections related to the vote of the Electors, so any objection will surely fail.

The Trump campaign and the attorneys general of 17 states objected to the popular votes in six states, claiming that irregularities tarnished the results. No court has agreed with these objections. Why not?

Well, because under the law a plaintiff must file a complaint that contains allegations of fact that, if true, would legally entitle the plaintiff to relief. The lawsuits filed so far have not met this requirement. While little evidence is required in the initial complaint, the media and others seem incapable of uttering the word “allegations” without placing the words “baseless” or “without evidence” adjacent to them. In our legal system, the evidence should come later, after the complaint is found to allege facts that, if true, would entitle the plaintiffs to relief.

The basic problem with these lawsuits is therefore the law—the law requires that, in order to grant relief, the errors must entitle plaintiffs to relief. The relief they seek is to overturn the election results in six states. The vote has been certified by the authorized state officials in each state. The Texas suit claims the right for states other than those six to challenge the certified results in other states. That is a very novel concept.

The Supreme Court, in a one-sentence order on Friday night, dismissed that lawsuit on the ground that the plaintiffs had no legal standing to challenge the certified results of elections in other states. The Constitution clearly provides the discretion in presidential elections to the legislatures of each state to determine how presidential Electors are chosen. And those states have certified their results. The Electoral College vote is scheduled for tomorrow at noon, Eastern time.

The Supreme Court’s decision was based on several important considerations. First, the Constitution vests the legislature of each state with the power to determine how Electors are chosen in that state. Every state has determined that the popular vote determines the choice of Electors. While two states (Maine and Nebraska) appoint electors by congressional district, all states and D.C. base the selection on popular vote. The Supreme Court found that states cannot challenge the certified election results in other states. Thus, even if Texas and the other states could show that the vote in those six states was flawed, those other states would not be entitled to the relief they seek.

Second, and perhaps even more important, elections must have an end. The schedule is tight for presidential elections—the new president is sworn in at noon on Jan. 20, 2021. And, perhaps of greater significance, the term of the incumbent president ends at the same moment. In 2000, the last time we had a crisis of this magnitude, the Supreme Court put an end to the Florida recount because the Electors had to meet on the first Monday after the second Wednesday in December. There is—in the law as in many other facets of public life—a time for disputes and a time for ending them.

As a country, we are now at that point. Even if there were irregularities that could lead to the rejection of millions of votes, the facts in support of such a monumental decision would need to be monumentally valid to overturn the certified results and effectively disenfranchise those voters. There is a heavy burden on those who would challenge those votes to prove such an extraordinary thing as a stolen election; and the burden should be heavy.

Other courts must decide other questions too. In the trade area, there are challenges pending in a number of cases dealing with tariffs on steel, on aluminum and on China, among other things. The deadlines for resolving those disputes are not subject to a constitutional deadline, so sometimes these cases take a long time to decide.

The law sometimes works more slowly, especially when there is not a constitutional deadline. For example, last week, the Court of Appeals for the Federal Circuit decided an issue affecting the right of importers to receive refunds of Section 232 duties on steel. The decision was on a motion by the government to postpone the effect of a judgment requiring the refund of 50% duties on imports of Turkish steel by three U.S. importers. The Court of International Trade decided in July that the 50% tariffs on Turkish steel imports were not authorized by Section 232 and that the tariffs also violated the U.S. Constitution. The government, as is its right, appealed that decision to the Court of Appeals for the Federal Circuit and asked the appellate court to stay the lower court’s judgment.

The court denied the motion, based on a couple of “fine points” of law, the discussion of which might put some readers to sleep. Suffice it to say that there are good reasons for these “fine points,” just like in the presidential election cases. Disputes sometimes require that there be a winner and a loser. The government must now return the tariffs to the importers that sued—the government cannot wait for the Court of Appeals to decide the government’s appeal.

I cannot predict how the merits of that appeal will turn out—but the refund of duties will proceed, in accordance with the law. That is a practical result that will interest those importers that sued.

The law is, like many things, elaborate, sometimes taking too much time and sometimes, perhaps, not enough time. But life goes on, decisions are made by courts, by the president and subordinate officials, by governors, by private companies and by individuals. Decisions can have consequences for both those who make the decisions and those affected by them. Democracy means that the people are always involved sooner or later.

It’s not a perfect system, but if there is a better system, I have not seen it in action.

Lewis Leibowitz

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