Last month, the Supreme Court refused to take up a challenge to Pennsylvania’s voting process put forth by Texas, a decision I roundly criticized. That decision is, I fear, even worse than originally posited, with the country breaking at the seams, culturally, over issues that are not as the breaking cultural warriors believe they are: the majority of Democrats believe Trump was an illegitimate President, a Russian stooge, and a gamer of Electoral College arcana. And, almost as an unconscious balancing of accounts, Republicans believe the 2020 election was stolen by the same game, in their part of the arms race of fantasy. One can go blue in the face arguing with people who believe either of these demonstrably false things (Google is a thing, people, very easy to use). But, as Mark Twain once put it: “It is easier to fool someone than convince them they’ve been fooled.”

I’ve had members of my own family, and we are reasonable people, deem Republicans guilty of treason for even questioning some of the issues of the 2020 elections (which makes me a traitor for writing about them, it would follow). Social media mandates of silence, despite how factually (and almost immediately) wrong they have proven to be, only super-fuel the fight over fantasy.

There is absolutely nothing frivolous about one group of the political divide believing their power-sharing arrangements illegitimate, just as there is nothing frivolous about one half of the country believing the other half not just wrong, but treasonous.

So, the stakes of perceived legitimacy, which is the glue that holds any Democracy together, are not served by a Supreme Court holding that since there was no injury in the Texas suit, the issue does not deserve a hearing. Granted, the SCOTUS will not hear theoretical cases, only cases where actual damages occur. Also granted, no state in the suit showed any injury that could be addressed with evidence continuing to unravel Republican claims of chicanery. But a “stolen” election by party-line fraud would be like seeking standing for damage caused by a nuclear war; by the time there is damage for standing, the damage is done.

Let’s see this with a slight alternative history: does anyone believe for a minute, that the Democrats, the media, and the SCOTUS would be as quiet if the rules for elections were changed during vote counting in Florida, 2000, with the Presidency on the line? What would have happened if the Republican Secretary of State unilaterally issued mandates on how “pregnant chads” and “hanging chads” were counted, irrespective of established electoral law? The Democrats would claim (rightly) a Republican state legislature “rubber stamped” the theft if they reviewed the move and found it legal, just as the PA state legislature did for their party. Only the state legislatures can make, or change, election rules, and those before the election starts. No game is fair and square if one side can change the rules when the game is on.

Like Republican charges of fraud are moves in an arms race to counter Democratic charges of the same, bet Karma will put this shoe on the other foot, and soon. Bet politicians have taken note: “you mean I CAN JUST CHANGE the rules during an election where my job is on the line? Interesting.” God only knows the games that will come out of that box. A quote (mis)attributed to Stalin says it best: It hardly matters who votes, what matters is who counts the votes.

Then there’s the schizophrenic dissonance of Democrats’ four year claims of a stolen election by Russia, with a somersaulting vault to the “claiming of any election fraud is fabulizing at best, treason at worst” position in Trump vs Biden. The mainstream media went behind like synchronized Flying Wallendas.

The problem of politicians rigging how American votes are counted is long-chronic, and has caused us to be downgraded in rankings of Democracy. If our election standards were in line with what we invaded Afghanistan and Iraq to impose, that would be an improvement (everyone would howl if the Taliban could change voting parameters during the count).

We are far overdue for a bipartisan redefinition of all sorts of election rules (try to stop laughing), from the gerrymander to crap like what happened in PA. Self-serving districting is one of the many reasons our politicians are ensconced in office, with 10% approval contrasted with 90% re-election. This, of course, is besides the Jim Crow era in the ex-Confederacy, which stunted political rights and human development there for a Century.

Also of course: the Supreme Court has made legally impeccable decisions, but which had Titanic effects on justice. The Supreme Court upheld slavery and runaway slave extradition. If SCOTUS can speculate a set of rights into existence with Roe v Wade (the right to privacy), it would seem simpler for them to make the states craft up-and-up election law, subject to objective review, and free from such political machinations.

If the SCOTUS cannot force a reform of election law, nobody can. The evolutions of a partisan arms-race of “vote-counting” changing from there, are likely to make us more fraught, except over something very real.

• About the Author

About Eugene Darden Nicholas

Eugene Darden (Ed) Nicholas is from Flushing Queens, where he grew up sheltered from the hard world, learning the true things after graduating college and becoming a paramedic in Harlem. School continues to inform and entertain in all its true, Shakespearean glory. It's a lot of fun, really. In that career, dozens of people walk the earth now who would not be otherwise. (The number depends on how literally or figuratively you choose to add). He added a beloved wife to his little family, which is healthy. He is also well blessed in friends and colleagues.