Dems creating constitutional crisis with redefinition of voting law authority, GOP says

Key Republican leaders argue that Democrats are wrongly trying to redefine who has constitutional authority over running elections in order to sow chaos and delay a clear presidential election result.

However, Republicans say they are hopeful the U.S. Supreme Court — especially with the newly-sworn Justice Amy Coney Barrett to possibly tip the balance — will ultimately restore constitutional order under a strict textualist reading that prohibits last-minute judicial usurpation of the prerogatives of state legislatures to make election rules. 

"Big problems and discrepancies with Mail In Ballots all over the USA. Must have final total on November 3rd," President Trump tweeted on Monday.

Trump expounded his concerns further on Tuesday afternoon before boarding Marine One on the South Lawn of the White House.

"It would be very, very proper and very nice if a winner were declared on November 3rd, instead of counting ballots for two weeks, which is totally inappropriate, and I don't believe that that's by our laws," Trump said. "I don't believe that. So we'll see what happens." 

Michele Bachmann, former Republican congresswoman and GOP presidential candidate, told "Just the News AM" television show that the U.S. Constitution is "absolutely clear" in article one, section four, which states "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof."

Bachmann disagreed with a recent ruling by the Supreme Court of Pennsylvania (which the U.S. Supreme Court declined to review in a 4-4 decision last week) that requires state election officials to count mail-in ballots received up until three days following Election Day. Republicans plan to return to the high court to challenge the Pennsylvania court intervention anew, with Barrett now on the bench to break a tie.

"Election law can only be decided by one body, and that's the 50 state legislatures across the United States," Bachmann said. "So the Supreme Court of Pennsylvania has no business changing election law prior to an election. And they know it. It's clear that it was a partisan decision on the part of the Pennsylvania Supreme Court, but I do think with Amy Coney Barrett coming on the Supreme Court, very soon, that we could see another bite at the apple, even prior to the election.

"I think we could see this revisited because this is happening all over the United States, this isn't an accident. This chaos and this confusion is baked into the cake of this election, and it's done by partisans who want to throw the elections into chaos. They don't want a decision on election night."

Republicans praised a U.S. Supreme Court ruling on Monday night rejecting Democrats' request to extend the deadline for counting mail-in ballots in Wisconsin beyond Election Day because of coronavirus concerns.

In a 5-3 ruling, the court's conservative bloc concluded that state legislatures and not the federal courts should set election laws, thus refusing to overturn a federal appeals court. That appeals court had issued a stay of a district judge's order that would have allowed vote counting to extend beyond Election Day. 

White House Deputy Communications Director Brian Morgenstern told "Just the News AM" on Tuesday — the morning after Barrett's swearing in — that "it certainly looks as though" other cases similar to Wisconsin's could come before Barrett. 

"Over the course of the process, we would never put her in a position of prejudging a case or expressing an opinion or forecasting the way she would rule on anything — she'll be guided by the Constitution, and she'll apply the law to the facts of any case that comes before her," Morgenstern said. "But it certainly looks as though there are cases like that coming through the pipeline. But I'd like to remind the American people that she's an independent jurist. She asserted that again last night, that's part of the reason the president chose her, because she will be fair and impartial." 

Morgenstern said he saw a double standard in how the left was treating questions about Barrett's judgement on electoral matters. 

"And to the extent the left and the Democrats are questioning anything about her integrity or her ability to be impartial — look at Justices Sotomayor and Kagan, who ruled on election issues relating to President Obama, even though he appointed them," Morgenstern said. "It's this double standard that we see that really is unacceptable."