Donald Trump caught another lousy break on Friday when the Supreme Court shot down a lawsuit filed by Texas against four battleground states:
- Pennsylvania, and
Following the dismissal of Texas v. Pennsylvania on the basis of lack of standing, Trump’s hopes hinge on four cases sitting in lower courts and longshot – that would be explosively controversial, but legal — congressional maneuvers.
Still, the case thrown out by the SCOTUS on Friday represented one of Trump’s best opportunities to slow Joe Biden’s electoral college victory and give the incumbent time to dispute the election results.
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Per usual, how one feels about the Court’s decision to dismiss the challenge without hearing Texas Attorney General Ken Paxton’s case is almost entirely predicated on political predispositions.
- For CNN, MSNBC, the New York Times, and Washington Post, Friday’s rejection was a great triumph and the final nail in the coffin for Donald Trump’s attempted coup. Articles about Texas’s lawsuit are rife with descriptors like “frivolous,” “desperate,” and “seditious.” They also repeatedly describe the suit as an attempt by the Trump-supporting Texas AG to “throw out” voters’ ballots and “overturn election results.” To mainstream liberal outlets, this was nothing more than the President’s latest affront to the integrity of the country’s “free and fair” elections.
- Conservatives are angry and disappointed and more convinced than ever that their candidate is being robbed of reelection by corrupt institutional forces closing rank against a political outsider. Despite the Texas lawsuit presenting some legitimate legal arguments concerning the expanded use of mail-in ballots and altered voting processes (in violation of Article II of the Constitution’s Elector’s Clause), they can’t even have their day in court to present their case and solicit an official ruling by the Supreme Court.
Texas vs. Pennsylvania
Not an “Election Fraud” Lawsuit
First and foremost, Paxton’s 154-page complaint was not premised around allegations of fraud. As I highlighted above, the complaint is built entirely around violations of the Elector’s Clause and state officials overriding state legislatures’ election rules.
“I’m not making a fraud argument; I’m making an argument based on the Constitution,” said Texas’s Attorney General. “And what we know happened, which is that we know state law was changed by people other than the state legislature, which is the only constitutionally-authorized changes that are allowed. So, we know that law was violated.
“My argument is that the law was violated, the Constitution was valid. I’m not I’m not addressing whether there was 2 million fraudulent ballots cast in Pennsylvania. I don’t know, and there’s no way to know. The way the system got set up, the way the rules got changed–supposedly because of COVID–we can’t even know. We can’t know if any of these ballots are legitimate. They did it in a way so that you can almost never go back and check it.”
Those details are important because the media has repeatedly lumped Texas v. Pennsylvania with the Trump campaign’s previous unsuccessful legal challenges.
Article Two of the US Constitution says the following:
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”
Article Two of the United States Constitution grants state legislatures the authority to decide the precise manner in which the electors are chosen. Most states make this decision through an indirect popular vote; the candidate who gets the most votes receives all the electoral votes. (Maine and Nebraska are exceptions; they allow individual districts to select electors.)
When the covid-19 pandemic hit, significant changes were made to many states’ voting procedures in the name of safety.
- States dramatically increased the number of registered voters who received mail-in ballots,
- installed ballot drop boxes throughout major cities,
- extended deadlines for receiving mail-in votes, and
- due to the unprecedented influx of mail-in voting, ignored security protocols, such as verifying voter signatures on mail-in ballot envelopes.
In the four defendant states, these changes were implemented by the Secretary of State (which happened to be Democrats) or election commissions.
Texas v. Pennsylvania argued that by altering election procedures without the input or approval of their state legislatures, the four states violated Article Two of the United States Constitution – which, again, gives state legislatures responsibility for defining how states run their elections / choose their electors.
So, how is that case “baseless” or “absurd?” Did that not happen?
We have months of news stories about state governments changing their election procedures in response to the covid pandemic to make voting safer and more accessible.
“It was very easy if they thought they needed to have an emergency alteration to their state laws to ask the legislature to pass it, and the Democrats did that in some states,” John C. Eastman, the counsel of record for President Trump and former dean at the Chapman University School of Law, said Thursday.
“But when they didn’t think that the legislature would go along, this is trying to fulfill a long-standing dream of Democrats, to just flood it with absentee ballot so the fraud is hard to prove.”
Whether the alterations made by state officials applied to Article Two is another question altogether.
One might argue that the state legislature only decides things like whether:
- their state will select electors through an indirect popular vote,
- electors’ names will be included on the ballot,
- “faithless electors” are legal, or
- they’ll utilize a “winner takes all” system.
Maybe things like expanded mail-in ballot access, extended deadlines, and relaxed signature matching/verification requirements fall outside of state legislatures” jurisdictions. Unfortunately, the Supreme Court won’t be shining much light on this issue – but more on that later.
The Equal Protection Clause
Paxton also cited the Supreme Court’s decision in the landmark case Bush v. Gore in his lawsuit. In that ruling, the Court found that the US Constitution’s Equal Protection Clause was violated by using different ballot-counting standards in different counties.
The Texas AG argued that the rules were applied differently across counties in the four defendant states, which disadvantaged the Republican candidate.
The lawsuit claimed the Equal Protection Clause of the Fourteenth Amendment was violated in Democratic-leaning counties, where more ballots with minor errors were accepted, and Republican poll-watchers were restricted from observing ballot counting.
Summary of Unconstitutional Activity Alleged by the Texas AG
Pennsylvania: The Secretary of State “illegally abrogated signature verification requirements for absentee or mail-in ballots.” The Pennsylvania Department of State’s guidance also did away with statutory signature verification requirements.
Local election officials in Philadelphia and Allegheny Counties decided not to follow PA election law 25 PA. STAT. § 3146.8(b), which reads, “Watchers shall be permitted to be present when the envelopes containing official absentee ballots and mail-in ballots are opened and when such ballots are counted and recorded.”
Georgia: The Secretary of State “without legislative approval, unilaterally abrogated Georgia’s statute governing the signature verification process for absentee ballots.” The State Election Board passed a rule allowing the processing of ballots before Election Day, in violation of OCGA § 21-2-386(a)(2), which “prohibits the opening of absentee ballots until after the polls open on Election Day.”
Officials opened and processed mail-in votes before it was legal and led efforts to reach out to voters to “cure” defective mail-in ballots, in violation of the state election code.
Michigan: The Secretary of State, “without legislative approval, unilaterally abrogated Michigan election statutes related to absentee ballot applications and signature verification.” Mailed unsolicited absentee-voter ballot applications to all 7.7 million registered Michigan voters before the elections, in direct violation of the Michigan Constitution, which requires voters to request absentee ballots. Did away with protections designed to deter voter fraud like signature verification for online absentee ballot requests.
The Secretary of State also authorized unlawful “curing” of incomplete mail-in ballots. “Wayne County made the policy decision to ignore Michigan’s statutory signature verification requirements for absentee ballots.” This was a common theme in heavily Democratic areas. For example, in Wayne Country, Biden received approximately 587,074 (68%) of the votes.
Wisconsin: The Wisconsin Elections Commission (WEC) and other officials “unconstitutionally modified Wisconsin election laws—each time taking steps that weakened, or did away with, established security procedures put in place by the Wisconsin legislature.”
For example, they positioned hundreds of drop boxes to collect absentee ballots in the five largest cities with Democrat majorities. They also ignored a state law requiring mail-in voters to certify signatures in the presence of a witness. Local election officials also encouraged voters to declare themselves “indefinitely confined” to unlawfully circumvent Wisconsin law requiring photo ID to vote by absentee ballot (“except for those who register as ‘indefinitely confined’ or ‘hospitalized’).
Considering the evidence, is it not possible that Democrat officials cynically exploited the pandemic to overwhelm key counties with questionable mail-in ballots while using the unprecedented increase in volume to excuse relaxing – if not ignoring – standard election requirements regarding their collection, authentication, and counting?
Are we 100% certain it’s Donald Trump who’s undermining American’s faith in our democratic processes?
Texas Attorney General Ken Paxton put it this way:
“Georgia, Michigan, Pennsylvania, and Wisconsin destroyed that trust and compromised the security and integrity of the 2020 election. The states violated statutes enacted by their duly elected legislatures, thereby violating the Constitution. By ignoring both state and federal law, these states have not only tainted the integrity of their own citizens’ vote but of Texas and every other state that held lawful election. Their failure to abide by the rule of law casts a dark shadow of doubt over the outcome of the entire election. We now ask that the Supreme Court step in to correct this egregious error.”
If Trump (and Texas) Had Won the Case
We must also remember that the President isn’t asking the Supreme Court to flip everybody’s votes and hand him the election victory, as it’s usually portrayed. Although, technically, that may have been the outcome had the Supreme Court ruled in Texas’s favor.
The Texas AG’s suit asked the Supreme Court to block electors from the four defendant states from casting their votes on Monday, postponing the Electoral College’s deadline to convene and make Joe Biden’s win official.
The motion would also invalidate the results in Georgia, Michigan, Pennsylvania and Wisconsin, and have their state legislatures choose the electors instead.
Due to the changes implemented by state officials, there’s no way to go back and get an accurate vote count. Ballots were separated from voter signatures and can no longer be matched and verified. Without holding the election all over again, which isn’t fair either, there’s no way to know how many legal votes were cast.
Paxton argues that since the four states’ residents elected state legislators, allowing them to select the electors is the next best option available.
Of course, I’m sure it’s no coincidence that the four defendant states happen to have Republican-majority state legislatures. That’s why Democrats from the states’ executive branches were forced to implement changes to the election procedures without their approval in the first place – they resisted anything that could potentially benefit Democratic candidates.
Dismissed for Lack of Standing
If the Supreme Court shows great Wisdom and Courage, the American People will win perhaps the most important case in history, and our Electoral Process will be respected again!
— Donald J. Trump (@realDonaldTrump) December 11, 2020
We’ll never know if Attorney General Ken Paxton’s lawsuit had merit because the Supreme Court dismissed Texas v. Pennsylvania, denying to hear the case on the grounds of standing – essentially saying Texas has no right to get involved in other states’ election issues.
The Supreme Court’s decision is short and sweet:
SCOTUS “ORDER IN PENDING CASE”
The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.
Statement of Justice Alito, with whom Justice Thomas joins:
In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction. See Arizona v. California, 589 U. S. ___ (Feb. 24, 2020) (Thomas, J., dissenting). I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue.
Paxton released a statement following Friday’s ruling:
“It is unfortunate that the Supreme Court decided not to take this case and determine the constitutionality of these four states’ failure to follow federal and state election law. I will continue to tirelessly defend the integrity and security of our elections and hold accountable those who shirk established election law for their own convenience.”
His point is that Texas is being prejudiced by the four defendant states not following their own election laws.
Dismissing the lawsuit based on standing means the court never considers the allegations detailed in the suit because the petitioning party had no legitimate interest in filing the lawsuit in the first place. But the state of Texas is undeniably impacted by who is elected President, which is why it’s a tricky case.
A Three-Sentence Response
What’s most frustrating for Trump supporters is the absolute lack of consideration from the Supreme Court.
“We’ve not gotten any court to judge this (the vote) on its merit.” @DanPatrick of Texas. It is a legal disgrace, an embarrassment to the USA!!!
— Donald J. Trump (@realDonaldTrump) December 12, 2020
Make no mistake; the lawsuit was always a longshot. However, the issue isn’t just that the SCOTUS dismissed the case based on standing, meaning no matter how damning, they wouldn’t address any evidence therein.
The justices didn’t even elaborate on why they believe Texas lacks standing.
This is the sort of thing that feeds into Trump supporters’ conspiracy theories. By only providing a three-sentence, explanation-free order, the Supreme Court appears to be avoiding committing to a position on this attempted use of the Elector’s Clause.
One might think they were intentionally vague, to give themselves the freedom to apply the Constitution as they see fit, depending on the plaintiff. Friday’s brief dismissal telegraphs a desire not to get involved in the election results.
Robert Barnes, an attorney, legal expert, and political bettor with whom I occasionally correspond wrote:
“This also signals SCOTUS will play Pontius Pilate throughout this election, wash their hands of what took place, and abandon the mediating role their position in the Constitutional order called for, which is sad for the Court itself.”
Trump Says “Fight On’
….that, after careful study and consideration, think you got “screwed”, something which will hurt them also. Many others likewise join the suit but, within a flash, it is thrown out and gone, without even looking at the many reasons it was brought. A Rigged Election, fight on!
— Donald J. Trump (@realDonaldTrump) December 12, 2020
Supreme Court dismissal aside, Donald Trump is not ready to throw in the towel. His paths to victory are becoming fewer and more outlandish by the day, but the man will not admit defeat until every single avenue is exhausted.
If Trump is ever going to get the opportunity to make an argument to the Supreme Court that’s actually heard and ruled upon, it’s going to come from one of four ongoing cases. Unlike Texas v. Pennsylvania, which fell under the Supreme Court’s original jurisdiction – meaning it didn’t work its way up through the lower courts, it went straight to the Supreme Court – these cases are taking the traditional route.
President Trump has legal challenges playing out in the following courts:
- Wisconsin Supreme Court (petition pending);
- Georgia Supreme Court (petition pending);
- Pennsylvania 3rd Circuit Case before Supreme Court;
- Arizona election contest appealed to US Supreme Court.
The Nuclear Option: Congress
After the courts, Trump’s options get really wild. If he wins a second term by going through Congress, we may see the United States split in two.
One way to shake things up would be to have Vice President Mike Pence refuse to certify the electors. According to legal scholars, the law grants the sitting VP, acting as the Senate president, the power to declare elector’s votes to Congress.
However, Pence probably won’t contest the state vote counts. Republicans in Congress can still challenge the results without him.
The Electoral Count Act of 1887 allows Congress to object if one House member & one Senator both object to a given state’s electors. Both chambers of Congress then convene for two hours to negotiate and vote on the objection.
From my research, it appears that both chambers of Congress must certify every state’s electoral votes. So, if only one side votes to uphold the objection, the election cannot yet be certified.
If, after the state certifications and objections have been voted on, neither candidate has 270 electoral votes, the 12th Amendment directs the House of Representatives to elect the President.
You may think that’s good news for the Democrats since they own a majority in the House, right? Wrong!
Each state only casts one vote as a House delegation! So, while the Democrats have a majority, they’re mostly concentrated in a handful of states. Republicans actually control 26 state delegations, while the Democrats hold 22.
If Republican voters get aggressive enough with their state representatives, there’s still a viable pathway to victory for Donald Trump.
It’ll just cause a civil war.
That said, I wouldn’t worry too much if you’re a Trump hater. From what we’ve witnessed so far, I highly doubt he has the institutional support to pull off such a political feat. Republican leadership already got their tax break and three Supreme Court hearings; they don’t need Donald Trump for anything else. If anything, they probably want control of their party back.
Still, I wouldn’t celebrate these little victories along the way too hard. You’re not out of the woods — not by a longshot — until January 6.