Texas Throws a Hail Mary

Yesterday the State of Texas filed pleadings in the U.S. Supreme Court alleging that the electoral processes followed by Pennsylvania, Georgia, Michigan and Wisconsin in this year’s election were unconstitutional and the results in those states should be negated. Because this is a lawsuit between states, the Supreme Court has original and exclusive jurisdiction. Texas’s pleadings are embedded below.

The Texas motion and supporting brief are well-drafted and make a plausible case–importantly, one that, if accepted, does not require extensive fact-finding into alleged voter fraud. Reduced to its essentials, the motion alleges 1) that under the Constitution’s Electors Clause, state legislatures have plenary authority over appointment of each state’s electors; 2) that in each of the defendant states, non-legislative actors (e.g., the Secretary of State) unconstitutionally changed the rules governing this year’s election without legislative approval or ratification; 3) that these changes favored some voters over others, in violation of the Equal Protection Clause; and 4) in each state, the number of ballots that were counted pursuant to unconstitutional changes in election procedures exceeds the margin of Joe Biden’s alleged victory.

So far, so good. What does Texas want the Supreme Court to do?

A. Declare that Defendant States Pennsylvania, Georgia, Michigan, and Wisconsin administered the 2020 presidential election in violation of the Electors Clause and the Fourteenth Amendment of the U.S. Constitution.

B. Declare that any electoral college votes cast by such presidential electors appointed in Defendant States Pennsylvania, Georgia, Michigan, and Wisconsin are in violation of the Electors Clause and the Fourteenth Amendment of the U.S. Constitution and cannot be counted.

C. Enjoin Defendant States’ use of the 2020 election results for the Office of President to appoint presidential electors to the Electoral College.

D. Enjoin Defendant States’ use of the 2020 election results for the Office of President to appoint presidential electors to the Electoral College and authorize, pursuant to the Court’s remedial authority, the Defendant States to conduct a special election to appoint presidential electors.

E. If any of Defendant States have already appointed presidential electors to the Electoral College using the 2020 election results, direct such States’ legislatures, pursuant to 3 U.S.C. § 2 and U.S. CONST. art. II, § 1, cl. 2, to appoint a new set of presidential electors in a manner that does not violate the Electors Clause and the Fourteenth Amendment, or to appoint no presidential electors at all.

F. Enjoin the Defendant States from certifying presidential electors or otherwise meeting for purposes of the electoral college pursuant to 3 U.S.C. § 5, 3 U.S.C. § 7, or applicable law pending further order of this Court.

Texas argues that there is time for the Court to act:

None of the looming election deadlines are constitutional, and they all are within this Court’s power to enjoin. Indeed, if this Court vacated a State’s appointment of presidential electors, those electors could not vote on December 14, 2020; if the Court vacated their vote after the fact, the House of Representatives could not count those votes on January 6, 2021. Moreover, any remedial action can be complete well before January 6, 2020. Indeed, even the swearing in of the next President on January 20, 2021, will not moot this case because review could outlast even the selection of the next President….

Based on a quick review, Texas’s lawsuit strikes me as plausible from a legal standpoint. It avoids the morass of fact-finding on numerous claims of fraud and irregularity (although there are considerable allegations along these lines in the pleadings) that cannot possibly be carried out by any court, let alone an appellate court, in a workable time frame. Does that mean the case will succeed? No. It may very well be subject to legal infirmities that the defendant states will soon point out. And the likelihood that the Supreme Court will seriously entertain the idea of overturning the apparent result of the election is far-fetched.

Still, Texas’s lawsuit represents the most credible and practical challenge to Joe Biden’s tainted victory that I have seen.

Responses