For all of you who don’t read long legal briefs, please allow me to give you the Readers’ Digest Condensed version. For a lawsuit to succeed, the plaintiff must show several things.
- He has been injured by the defendant.
- That injury is clearly identifiable (“particularized”).
- That injury is material (big enough to matter).
- A legal remedy exists for the injury.
Next, we have to recall that the Supreme Court is not obligated to take any lawsuit. They have to figure out if they believe that it will be important enough for them to consider. Jay Sekulow suggests this is why SCOTUS dismissed Mike Kelly’s suit against Pennsylvania without comment. Overturning just Pennsylvania would not change enough electoral votes to change the Presidential election. Kelly’s suit thus did not allege a “material” injury in the larger context. This problem may also derail a host of other suits in single states.
Texas sued four states: Georgia, Pennsylvania, Michigan, and Wisconsin. Since this suit is State vs. State, under Article 3 of the Constitution, the Supreme Court is the “Court of Original Jurisdiction.” Texas doesn’t have to go through any lower Courts first. And, since the electoral votes in those four states total enough to change the election, the alleged “injury” is material.
Texas is not directly alleging fraud. It is claiming an injury in law because the four defendant states did not conduct their elections the way their state laws require. This is important because Article 2, section 1 of the Constitution gives the legislatures “plenary authority” (Bush v. Gore) over the way they handle the election. This failure to follow the law injures Texas and the eighteen states that joined it by disenfranchising those states in the Electoral College. They are not claiming that the electoral outcome should change. Rather, similar to “one man-one vote,” the legal principle must be that an illegal election in one state cannot be allowed to offset a legal election in another. Without that principle, no one can have faith in the integrity of the vote. It is imperative to know that win or lose, the contest was managed according to the rules.
The specifics vary from state to state. But the central issue is that because the legislature is constitutionally supreme, no one outside the legislature has any legal authority to change election procedures. Yet they did. (This listing is not exhaustive.)
- Georgia: The Governor and Secretary of State entered into a “Consent Agreement” with the Georgia Democrat party. Because neither official is part of the legislature, they had no legal authority to make the agreement. It changed two key things.
- Signature verification on mail-in ballots was dramatically weakened, resulting in almost no ballots being disqualified, compared to around 6% in prior elections.
- Pennsylvania: The Governor failed to get the legislature to change election rules, so he went to the State Supreme Court to get them changed. This unlawfully allowed mail-in ballots to arrive three days after the election. SCOTUS had a 4-4 tie on the review, and required late ballots to be sequestered pending further possible reviews. Pennsylvania flouted this order and failed to segregate the ballots. The Secretary of State gave unlawful guidance to eliminate signature verification and date confirmation on mail-in ballots.
In all four states, other significant unlawful acts were committed.
- Mail-in ballots were sent to millions of people who did not request them.
- Mail-in ballots were received after election deadlines and counted.
- Republican observers were excluded from meaningful participation in the vote review process.
Ultimately, the number of “votes” involved in these unlawful counts far exceeds Joe Biden’s margin of victory in each of the four states, casting doubt on his “win.” While the rest of us may be interested in the “fraud” side of the question, Texas has wisely focused on the unlawful administration of the election. As Texas Attorney General Paxton notes, “Their failure to abide by the rule of law casts a dark shadow of doubt over the outcome of the entire election.”
Having established standing and a particularized injury, the suit moves to the issue of remedy. And again, Texas follows a wise path. SCOTUS does not wish to solve political issues. If they rule that Trump won the election, that would be seen widely as a political decision. But if SCOTUS can rule in a way that remedies the legal injury but without directly deciding the election, it can plausibly be seen as calling balls and strikes, not deciding the final score. Texas points to this escape clause in 3 U.S. Code § 2.
“Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.”
The lawsuit argues that because the election was not done correctly, the four defendant states did not choose electors. The idea that administrative parties “certified” electors is irrelevant. No lawful election process means no lawfully selected electors. 3 U.S. Code § 2 means that once SCOTUS calls “foul,” they get to send the election in each state directly to the legislature. And here we find ourselves listening to Yogi Berra. “It’s tough to make predictions, especially about the future.”
Suppose the Governor of Georgia refuses to call the legislature into session to decide the issue. Does that mean that Georgia doesn’t send any electors? Suppose the Pennsylvania legislature can’t agree on who to send? Do they split the baby and send ten for Biden and ten for Trump? We can go on and on with possibilities. As SCOTUS has ruled, the legislatures can do anything they like. They have plenary authority.
The legislatures of the four states are fully Republican in name. In theory one would expect them to take advantage of the cover granted by SCOTUS to vote for Donald Trump, denying the Democrats a stolen victory. But at the same time, we have to question their fortitude.
One final twist arises. If SCOTUS does not rule until January 5, it’s entirely possible that they would hand the election directly to the House of Representatives according to the 12th Amendment. This alternate political solution would almost certainly give Donald Trump the win, since each state gets one vote, and Republicans control 27 out of 50 states.
So get another tub of popcorn. This movie’s not over.
Ted Noel posts on social media as DoctorTed and @vidzette.
COVID-19 may take down an independent news outlet
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