The State of Texas filed a lawsuit directly with the U.S. Supreme Court shortly before midnight on Monday challenging the election procedures in Georgia, Michigan, Pennsylvania, and Wisconsin on the grounds that they violate the Constitution.
Texas argues that these states violated the Electors Clause of the Constitution because they made changes to voting rules and procedures through the courts or through executive actions, but not through the state legislatures. Additionally, Texas argues that there were differences in voting rules and procedures in different counties within the states, violating the Constitution’s Equal Protection Clause. Finally, Texas argues that there were “voting irregularities” in these states as a result of the above.
Texas is asking the Supreme Court to order the states to allow their legislatures to appoint their electors.
UPDATE: Kris Kobach:
Texas brought a suit against four states that did something they cannot do: they violated the U.S. Constitution in their conduct of the presidential election. And this violation occurred regardless of the amount of election fraud that may have resulted. …
Texas filed the suit directly in the Supreme Court. Article III of the Constitution lists a small number of categories of cases in which the Supreme Court has “original jurisdiction.” One of those categories concerns “Controversies between two or more states.” Texas’s suit is exactly that. The Supreme Court has opined in the past that it may decline to accept such cases, at its discretion. But it is incumbent upon the high court to take this case, especially when it presents a such a cut-and-dried question of constitutional law, and when it could indirectly decide who is sworn in as President on January 20, 2021.
The Texas suit is clear, and it presents a compelling case. The four offending states each violated the U.S. Constitution in two ways.
First, they violated the Electors Clause of Article II of the Constitution when executive or judicial officials in the states changed the rules of the election without going through the state legislatures. The Electors Clause requires that each State “shall appoint” its presidential electors “in such Manner as the Legislature thereof may direct.” … Thus, when the Pennsylvania Supreme Court extended by three days the deadline for receiving mail-in ballots, contrary to the law passed by the state legislature, the state court changed the rules in violation of the Electors Clause. Similarly, when Georgia’s Secretary of State responded to a lawsuit by entering into a Compromise Settlement Agreement and Release (i.e. a consent decree) with the Democratic Party of Georgia, and modified the signature verification requirements spelled out by Georgia law, that changing of the rules violated the Electors Clause.
The second constitutional violation occurred when individual counties in each of the four states changed the way that they would receive, evaluate, or treat the ballots. Twenty years ago, in the landmark case of Bush v. Gore, the Supreme Court held that it violated the Equal Protection Clause of the Fourteenth Amendment when one Florida county treated ballots one way, and another Florida county treated ballots a different way. Voters had the constitutional right to have their ballots treated equally from county to county. So when election officials in Wayne County, Michigan, ignored the requirements of Michigan law and denied poll watchers access to vote counting, while other counties in Michigan followed the law, that violated the Equal Protection Clause. Similarly, in Wisconsin, when the Administrator of the City of Milwaukee Elections Commission ignored the requirements of Wisconsin law and directed election workers to write in the addresses of witnesses on the envelopes containing mail-in ballots, while ballots without witness addresses were deemed invalid elsewhere, that resulted in the unequal treatment of ballots in the state.
Importantly, the Texas lawsuit presents a pure question of law. It is not dependent upon disputed facts. Although these unconstitutional changes to the election rules could have facilitated voter fraud, the State of Texas doesn’t need to prove a single case of fraud to win. It is enough that the four states violated the Constitution. ..
If Texas prevails, the four state legislatures could follow any number of courses in appointing their presidential electors. They could assess the election results and try to exclude those ballots that were counted in violation of state law in order to determine a winner, or they could divide their Electoral College votes between the two candidates, or they could follow a different path. But they have to follow the Constitution in whatever they do.
If individual states are allowed to flout this provision, then our social compact — the US Constitution — is effectively a dead letter. This is certainly the lesson of the struggle for equal civil rights for all persons. That struggle led us through a bloody Civil War and much else since then. The justices all understand that.
Texas, as an equal member of these United States, has a right to expect that the SCOTUS will enforce the Constitution as against all other states. To do otherwise violates the nature and purpose of the Constitution. As a remedy, Texas is asking that the Supreme Court remand the appointment of electors in the four states back to the state legislatures of those respective states.
Texas has drawn a line, whether most of the country understands that or not–and if the justices attempt to dodge or finesse these issues they will do so at great risk to the Union. The justices have to be able to sniff the scent of secession in the air. It’s a serious thing when one state alleges Constitutional grievances as basic as free and fair elections and equal protection of the laws against other states. But we all know that there are other grievances–grievances against the recklessly lawless political party that is behind this flouting of the Constitution, with more harm openly threatened or promised. …
All of this would be serious, no matter whether it was Rhode Island making the claims. But that Texas has brought these constitutional grievances before the SCOTUS raises the seriousness to potentially existential levels. Texas brings these grievances as the representative of not less than half the nation — in terms of population, land area, and economic importance — and as an economic powerhouse.
This might get interesting.
hat-tip Kat H., Stephen Neil