Claremont went into greater detail than TIP on anticipated post-election litigation and writes . Despite Trump's open avowals that he would sue to overturn the election if he lost, Claremont does not address that issue. It has one suit in what the Republican Party of Michigan seeks to compel the governor to seat electors. The court refuses, saying that under Michigan law there is no timetable for the electors to be certified. I think Claremont intends to endorse this opinion. If so, it would clearly give Republican governors the option of refusing to certify Biden as winner regardless of the vote outcome, but Claremont does not address that possibility. What Claremont focuses on most of all is suits by Democrats to require and Republicans to block counting of ballots received after the election. Or, as Claremont puts it, "[T]he Biden team seeking to negate state election law to maximize the counting of late or flawed mail-in ballots while the Trump team sought to have state election law followed." It has opinions going both ways.
I read the opinions with some interest to see how much the emphasized what Trumpsters since the election have decided is their most sacred principle, Article II, Section i, paragraph 2 of the Constitution, "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . " (emphasis added). Thus, the argument goes, any change in voting rules must be passed by the state legislature, which cannot delegate its power or be struck down by state courts. Thus all changes in election procedures made to accommodate COVID are unconstitutional because they were not passed by the state legislatures. Republicans tried to overturn numerous elections on those grounds. So how important a principle was that before the election?
Several of Claremont's "decisions" ruling against a counting ballots
ceived after election day cite state law and one says:
The federal Constitution makes clear that the “Manner” for choosing electors shall be directed by the Legislature. U.S. Const. Art. II, § 1, cl. 2. The Michigan legislature as determine that vote-by-mail ballots must be received by the close of polls on election day. To allow a low-level court of claims judge, rather than the legislature itself, to alter that “manner” of election, with apparent complicity from the executive officials of the state, is to ignore those basic structural requirements.
No other opinion is so emphatic on the matter. But probably the most significant "opinion" prepared by Claremont is is proposed Supreme Court decision upholding this ruling:
[T]his Court has repeatedly treated late challenges to long-standing election rules as deeply suspect.. . . What happened in the district court below is even worse. Its order, reversed by the Court of Appeals, was not a change in the rules close to the election; it was a change in the rules after the election had ended, while the ballots were still being counted. I cannot think of anything that would undermine our faith in the ballot more than were we to allow changes in the rules after the game had been played, when partisans can target rules of long-standing for a temporary political gain.
How true! And this viewpoint would come back to haunt Trump supporters in numerous cases filed after the election seeking to challenge changes in rules a unconstitutional because the changes were not made by the legislatures. The courts invariably ruled that the challengers should have made their challenges before the election, and that overturning a result after the fact was not an allowable remedy.
I also found one of the players in Claremont's wargame strangely passive. Their scenario has a great deal of activity by left-wing rioters, by police and right-wing vigilantes, by state parties and by state and federal courts, by social media, by members of Congress of both parties (always with Democrats as the villains), and even a little activity by Joe Biden (calling his supporters out into the streets) and Mike Pence (presiding over the Senate in the vote count). But Donald Trump does absolutely nothing during the entire wargame! He never so much as tweets! Does this seem even remotely plausible?
Finally, I think Claremont shows a serious misunderstanding of Antifa/Black Lives Matter, which may itself be an example of the mirror image fallacy. I saw the same error in a tweetstorm by a Trump supporter which (mercifully) I can no longer find. The tweeter acknowledged that most of the allegations of vote fraud were false, but that underlying sense of unfairness was legitimate. I read it over with great interest to see if it was finally a reasonable argument supporting Trump's position. It was not, simply an ever-growing font of paranoia. But what stuck with me in particular the tweetstorm's dismissal of all the federal court rulings dismissing challenges of the election. These could not be counted on, the tweeter said, because federal judges were probably intimidated by the Antifa/BLM crowd.
First of all, both Claremont and this tweeter are seriously underestimating their own side's potential for violence. Both assume that the potential for violence lies solely on the left, which the right is strictly for law and order, even as voting officials were being deluged with threats and harassment from Trump supporters, even as a Trump supporter looking for voter fraud force an air conditioner repairman off the road to search for forged ballots. And, of course, Claremont got quite wrong who was going to revolt when the vote was counted.
None of this is to deny that a violent left exists. Antifa is certainly real Black Lives Matter has its violent precincts. Riots in the summer of 2020 are fairly described as left-wing. Our side needs to acknowledge the reality of a violent left and take a strong stand against it. But the violent Left is not interested in electoral politics. It regards the whole spectrum of elected politicians as simply part of the same system of oppression. Until recently, the more extreme precincts of the Right took that same viewpoint. Part of what makes Trump so dangerous is that he brought the far Right into electoral politics.
Consider the targets of violence in 2020. The bulk of the violence was senseless destruction of property, some of it directed toward police stations (clearly a political target) and some toward looting stores (not a political target). Soon after, there was a wave of violence against statues and monuments, which was clearly political. Protesters in Seattle seized several blocks and attempted to create their own autonomous zone outside the control of the state -- a thing to be condemned whether it happens in downtown Seattle or on Bundy Ranch. And Portland rioters besieged the federal courthouse night after night. All of this deserves to be condemned. All of it is properly seen as political and left-wing. All the targets except the stores looted (but bulk of targets, after all), are properly seen as "political" targets.
But none of it targeted the election system. Attacks on the election system have been the province of the right. When TIP commented that the Biden team did not control Antifa/Black lives matter, they did not primarily mean that protests by these groups might escalate out of hand (although that was certainly a possibility). What TIP meant above all was that Antifa/BLM might not show up when Biden called. If Claremont and other Trump supporters do not understand this, then they are missing important political realities.
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