A Mulligan for the Supreme Court

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January 6, 2023

Most weekend golfers are familiar with the term “mulligan.”  Many have probably even taken one or more.

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The term was derived from an incident involving David Bernard Mulligan, a Canadian amateur golfer.  Arriving late at the course, he hit a terrible shot off the first tee.  Casually, he reached into his pocket, took out a new ball, placed it on the tee, and proceeded to take another shot.  When asked what he was doing, he replied that since his first shot was so bad, he deserved a free chance at a second shot.  This practice rapidly became known as “taking a mulligan,” and has since become part of the common vocabulary as the term for a “do-over.”

Many would argue that the Supreme Court had a terrible “first shot” in regards to the election of 2020, when they refused to become involved in the many issues raised by the Presidential election.  Perhaps the most notable of these was Texas vs. Pennsylvania, in which the State of Texas asked that Pennsylvania, Georgia, Michigan and Wisconsin not be allowed to certify their 2020 election results because changes in their election procedures made by courts, governors, and election officials violated the Constitution, which rests the power to define the “times, places, and manner” of federal elections solely in the hands of state legislatures, an argument commonly referred to as the “Independent State Legislature” (ISL) theory.

The Court refused to consider the case, not on the merits of its argument, but on a technicality, claiming that Texas had not demonstrated a “judicially cognizable interest” in the manner in which another state conducts its elections.

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As a result, we have seen nearly two years of the rapid destruction of our nation, including fiscal irresponsibility that is led to staggering inflation, a steady decline in the stock market, enactment of policies that have reduced us from energy independence to a nation that must look to countries such as Venezuela and Iran to meet our basic needs and, perhaps most frightening, the politicization of the Department of Justice (including the FBI) into organizations resembling a third-world police state.

Fortunately, there are cases currently before the Supreme Court that offer them the opportunity for a “do-over.”

The most creative and far-reaching of these is Brunson v. Adams, in which a Utah man asserts that, because a substantial number of members of Congress refused to consider claims of election fraud prior to certifying the electors, they had failed their duty under their oath to protect the country from all enemies, foreign and domestic, and therefore should not only be removed from office, but disqualified from holding any future office.

Rayland Brunson, who is arguing the case by and for himself (although he is now been joined by his three brothers) contends that “When the allegations of a rigged election came forward, the Respondents had a duty under law to investigate it or be removed from office.  An honest and fair election can only be supported by legal votes, this is sacred.  It is the basis of our U.S.  Republican Form of Government protected by the U.S.  Constitution.”

Brunson suggests that the court simply order a federal marshal be dispatched to Congress to inform them that these individuals, which include the entire Democrat membership at that time (as well as such well-known Republicans as Rand Paul and Lindsay Graham) have been removed from their office, and that President Trump be reinstated.

The Court has accepted this case on an emergency basis and scheduled their first formal conference on it for Friday, January 6^th.  The Brunsons have expressed their opinion that, because the scope of such an action would be so broad and controversial, such a decision would have to have been reached in total secrecy, and therefore, they leave open the possibility that the majority of the Court will simply announce its decision during this conference.

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The other case is Moore v.  Harper, in which a redistricting map developed by the state legislature was rejected by a state court, which then enlisted a third party to draw a new, “fairer” map.

At issue is the interpretation of the so-called ISL theory which is based on Section Four of Article One of the Constitution which states that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.”

Opponents of the strict interpretation of this clause have long argued that such a limited view would give state legislatures the power to gerrymander districts and limit the ability of minorities to participate equally in fair elections, without recourse to state courts or other elected officials.

However, the wording adopted by our Founding Fathers seems rather unequivocal, and specifically sets forth Congress as the one body empowered to make or alter such regulations.

It’s not hard to understand the reasoning that led the authors of this clause to vest such powers in the state legislatures.  They were, and to a great extent still are, the bodies closest to the people they represent, and therefore, the best representation of the will of the people.

Yet, in 2020, the “times, places and manner” of holding federal elections were themselves “gerrymandered” by not only state courts, but governors, attorneys general, and various election officials, all of whom took it upon themselves to rewrite the rules of the election as set forth by the respective legislatures.

Moore v.  Harper gives the Supreme Court an opportunity to rule, once and for all, that the Constitution means what it says. Since:

1) there were many violations of this clause both during and after the election of 2020, and

2) these violations had the potential to significantly alter the outcome of the election, and

3) these violations were most prominent in the so-called “swing states” and

4) the margin of victory in these states was so slender as to raise the distinct possibility that these violations did, indeed, alter the outcome of the election, and

5) therefore the Presidential election of 2020 was unconstitutional, and is invalid.

Upon such a finding, the Court should order the immediate reinstatement of Donald Trump as President until such time as a legitimate election can be held.  In so doing, the court could also invalidate any legislation, policies, appointments, and executive orders promulgated under the Biden administration.

Far-fetched? Probably.  But this court has demonstrated that it is a far different body than it was in 2020.  It has shown that it is willing to take such bold actions as overturning Roe v.  Wade.

As constitutional law professor Tim Canova explained:

It seems astounding that the Court would wade into such waters two years to the day after the Congressional vote to install Joe Biden as President. But these are not normal times.

Supreme Court Justices may well see these approaching storm clouds and conclude that the Court’s intervention is necessary to prevent larger civil unrest resulting from constitutional violations that are undermining public trust and confidence in the outcomes of both the 2020 and 2022 elections. When criminals break the law — state and federal statutes — to rig an election, we are dependent on prosecutions by law enforcement agencies that have sadly become politicized and complicit. When they break the Constitution — the supreme law of the land — to rig an election, the only recourse may be the Supreme Court or military tribunals.

We can only hope. If an average weekend golfer can take a mulligan, surely the Supreme Court of the United States can be allowed one.

Image: RawPixel

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