Have you read the 154-page lawsuit filed against the states of Wisconsin, Michigan, Pennsylvania, and Georgia? I have. I am NO Constitutional expert, but the fundamental premise of the suit seems elementary to me. Let me break it down in layman’s terms:
- Individual states are required by the Constitution (Article II) to choose those who will serve for each state in casting the votes for those citizens in the electoral college for President.
- Each state’s lawmaking body — or “legislature” — determines in passed laws the processes for choosing those electors.
- The legislatures are required — in the same Article II — to set the details of how elections are to be structured. Any changes in each election system can only be changed by amending previously passed laws. No governor or other state official has the legal authority to alter the election process enshrined in state law.
- The Supreme Court is to resolve disputes between states. That gives the Court the sole responsibility to resolve this lawsuit between Texas and the four other states.
What Are the Potential Actions by SCOTUS?
The Court will view the states’ responses due by 3:00 PM Thursday and decide to push forward with the lawsuit or to simply refuse to get involved.
As we see it, the option to hear the case and oral arguments would be to determine ONLY whether any or all of these four states violated the provision of the U.S. Constitution in Article II. This section set the requirement of states’ lawmaking bodies to set the election process.
If the Court decides to NOT take the case, that would remand the case back to Texas. That would mean the election results as certified by those four states’ governors would stand and the electors as chosen by those states would participate in the electoral college process. That, in essence, would result in a Joe Biden presidency.
The Dangers of Each Choice of the SCOTUS
Let’s assume the Court takes the case, hears it, and decides to remedy the unconstitutional actions of these states. That approach leaves them few options.
One would be to instruct the applicable states to take actions legislatively to select electors outside their previous process. That ruling would mean the votes tallied and included in the certified results previously would have to be revised. That may NOT be possible because of the constitutional mandate for the inauguration of a President on January 20th. State legislatures might themselves select electors.
It is possible but unlikely, a legislature could identify each of the ballots that were cast, counted, or both that were NOT done so legally. If so, invalidating those illegal votes and recounting using only the legally cast votes might be an option. It is doubtful this would work.
A Few “Experts” Opinion
The above was the TruthNewsNetwork opinion. No one here is an attorney and certainly not a Constitutional expert. But there ARE plenty of “experts” who have weighed-in on this historical matter.
“It looks like we have a new leader in the ‘craziest lawsuit filed to purportedly challenge the election’ category,” said Steve Vladeck, professor at the University of Texas Law School.
“Although the Supreme Court has ‘exclusive’ jurisdiction over disputes between states, it does not automatically hear all such cases,” Vladeck said. “Rather, states have to receive ‘leave to file,’ which usually requires showing that there’s no other forum in which these issues can be resolved.”
Vladeck called the filing “insane” and noted that Texas Solicitor General Kyle Hawkins isn’t named in the suit.
“Anyway, it takes five votes to grant a motion for leave to file — which isn’t going to happen,” Vladeck said. “And it’ll take some time. So chalk this up as mostly a stunt — a dangerous, offensive, and wasteful one, but a stunt nonetheless.”
Rick Hasen, professor of Law and Political Science at UC Irvine and a CNN Election Law Analyst, was equally dismissive of the case, writing a brief article on his blog describing the suit as “dangerous garbage.”
“The Texas case is not serious. Far from it. It’s a publicity stunt masquerading as a lawsuit. AG Paxton should be sanctioned for it. It goes against the will of millions of voters,” Hasen wrote on Twitter.
Dallas County Judge Clay Jenkins, who’s recently come to national attention for his efforts to combat the COVID-19 pandemic in the county, said that Paxton had provided no evidence to back up his request that the election results in four states be thrown out.
“Texas Sues Four States in Supreme Court Over Results in 2020 Presidential Race. This is a publicity stunt. One state has no standing to complain about how another state(s) choose their presidential electors. Plus @KenPaxtonTX fails to cite any evidence of fraud,” Jenkins tweeted on Monday.
Laurence Tribe, a legal scholar, and professor at Harvard Law School, also suggested that Texas may not have standing to bring the case, and therefore the court may decide not to hear it.
“This is truly ridiculous,” Tribe said. “If the 50 sister States could sue one another to overturn each other’s election results, there’d be a mind-blowing cascade of at least 50! (ie 50 x 49 x 48 x … x3 x2) intra-family Electoral College megasuits. Endless!”
Democratic Congressman Colin Allred of Texas’ 32nd district, a former civil rights attorney, echoed much of the criticism from legal experts about the case being a publicity stunt.
“Deeply embarrassing that TX’s AG is wasting our tax dollars trying to subvert an election,” Allred tweeted. “This stunt will not distract from Mr. Paxton’s scandals and will not change the result of this election, it will only hurt our democracy and waste your money.”
What Experts Confirm the Validity of the Texas SCOTUS Case?
Quite honestly, we have yet to find any Constitutional expert who has publicly commented favorably on the 154-page lawsuit filed by the Texas Attorney General. It is obvious, however, that the Attorneys General of the 17 states that have joined Texas in the lawsuit believe the case is legitimate and constitutionally necessary.
Texas Senator Ted Cruz was asked by Pennsylvania Congressman Mike Kelly to represent him in the Supreme Court case filed last week asking for the Court to invalidate Pennsylvania Governor Tom Wolfe’s election results certification. (The SCOTUS denied that emergency action by Kelly) And President Trump has asked Cruz to represent him in the Texas case, which President Trump joined on Wednesday.
Summary
It is disheartening that the 2020 election has devolved into this. It’s nauseating to see any elected state officials who would even consider throwing-out a provision in the U.S. Constitution and replacing it with their “personal” preferences to change their state’s election law WITHOUT legislative action. The audacity of the leaders of these four states is more obvious now as are their attacks on the Rule of Law.
Further, the fact that few, if any, Constitutional experts have joined in the cry for justice through Constitutional requirement for how states are to set their own election structures, is concerning.
Could it be that this happening is a signal that many officials at both state and federal levels have turned their backs on the Rule of Law? Is it that they despise Donald Trump and the current wave of populism in the nation so much that they are willing to do anything necessary to bring down the President and this wave of Populism among the people?
Are they willing to turn their backs on American Democracy and our representative republic form of government?
Make no mistake: there is NO option to allow these unconstitutional actions by the leaders in these to stand AND preserve our current government structure! The two ideals cannot mutually exist.
However, the Supreme Court decides this case will determine the future of the United States of America. We will either continue to be the freest and most powerful nation in World history, or we will send a message to the World that we as a nation prefer to be an “also-ran” nation that functions exactly like numerous other countries: in either socialist or totalitarian structure and laws.
God help us.
