TEXAS SUIT IS NOT BUSH V GORE ALL OVER AGAIN:
Margot Cleveland of The Federalist tees up six things you should know about the Lone Star Stateâs suit at the Supreme Court claiming multiple constitutional violations by Wisconsin, Pennsylvania, Georgia and Michigan in the November 3 election.
1. This Is Not Bush v. Gore
Texasâs lawsuit differs greatly from the
Bush v. Gore. Unlike
Bush v. Gore, which traveled to the Supreme Court on appeal, Texasâs lawsuit relies on the Supreme Courtâs âoriginal jurisdiction,â or power to hear a case initially.
The Constitution establishes several types of cases that fall within the Supreme Courtâs original jurisdiction, but other than cases involving disputes between two states, Congress has created âconcurrent jurisdictionâ with lower federal courts. This means those other types of disputes may be heard by federal district courts.
When a state sues a state. The U.S. Supreme Court has âexclusive jurisdictionâ over such cases, meaning that such disputes can only be resolved by the U.S. Supreme Court.
Texas argues that the case âpresents constitutional questions of immense national consequences,â namely that the 2020 election suffered from serious constitutional irregularities, including violations by the defendant states of the Electors Clause and the Due Process Clause of the Constitution. The brief argues that a ruling would help âpreserve the Constitution and help prevent irregularities in future elections.â
2. The Time Is ShortâAnd the Court Has Already Acted
Texas filed a Motion for Expedited Consideration of its motions, including its second motion, a Motion for a Preliminary Injunction, Temporary Restraining Order, or Alternatively a Stay. Texas asks the court to order Georgia, Michigan, Wisconsin, and Pennsylvania not to take any action to certify presidential electors, participate in the Electoral College, or vote for a presidential candidate until the Supreme Court resolves Texasâs lawsuit.
If they grant that, Illegitimate Joe is no longer "President-Elect"
Noting that federal law establishes Dec. 8 as a safe harbor for certifying presidential electors, that the Electoral College votes on Dec. 14, and the House of Representatives counts votes on Jan. 6, Texas implores the court to expedite the proceeding, as âabsent some form of relief, the defendants will appoint electors based on unconstitutional and deeply uncertain election results.â
Yesterday the court, recognizing the urgency of the matter, ordered responses by the defendant states to Texas' Motion for Leave to File a Bill of Complaints, and Texasâ Motion for a Preliminary Injunction, Temporary Restraining Order, or a Stay, to be filed by Dec. 10, 2020, at 3 p.m.
3. Texas Presents Serious Constitutional Claims
The Lone Star Stateâs complaint presents serious constitutional issues. Those issues far exceed the electoral irregularities of âthe hanging-chad saga of the 2000 election.â
Texas presents three constitutional challenges. Count 1 alleges the defendant states
violated the Electors Clause of the Constitution.
The Electors Clause of Article II, Section 1, Clause 2 of the U.S. Constitution provides âeach 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.â As Texas notes, this clause âmakes clear that
only the legislatures of the States are permitted to determine the rules for appointing presidential electors.â
But, as Texas reveals in its detailed summary of the facts, each of the defendant states, through non-legislative actors,
nullified legislatively established election laws in violation of the Electors Clause. For example, several large Wisconsin counties used drop boxes in direct violation of the Wisconsin Election Code that provides detailed procedures by which municipalities may designate sites for the acceptance of absentee ballots. Wisconsin election officials also ignored the statutory certification requirements for absentee ballots, counting votes that the state legislature defined as illegal because they did not include a witness signature and address.
Michigan election officials likewise violated the statutory mandates established by the state legislature, with the secretary of state mass mailing absentee ballots in contravention of state law. And in Wayne County, the home of Detroitâs Democratic stronghold, election officials ignored the stateâs signature verification requirement. Georgia also violated the legislatureâs requirement for signature verifications, according to Texasâs complaint.
The most egregious violations alleged came from Pennsylvania, where election officials ignored the statutory bar on inspecting ballots before election day, then illegally provided voter information to third parties and allowed illegal curing of the ballots. Significantly, in Pennsylvania these illegal practices only occurred in Democratic strongholds, with Republicans following the law.
These and other practices, Texas alleges, establish a clear violation of the Electors Clause, because that clause makes clear that it is the state legislatureâand not administrative agencies, election officials, or even courtsâcharged under our constitutional system with selecting electors. (This argument finds
support in the three-justice concurrence authored by then-Chief Justice William Rehnquist in
Bush v. Gore.) From there, Texasâs Count 1 argues that âelectors appointed to Electoral College in violation of the Electors Clause cannot cast constitutionally valid votes for the office of President.â
In Count 2, Texas relied on the same facts, then asserted an Equal Protection claim, premised on the reasoning of the majority opinion in
Bush v. Gore. In
Bush v. Gore, the Supreme Court held that the Equal Protection Clause of the Constitution is violated when states apply differing standards for judging the legality of votes cast for president.
âThe right to vote is protected in more than the initial allocation of the franchise,â the Supreme Court wrote. âEqual protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one personâs vote over that of another.â
Then, citing its detailed statement of the facts, which highlighted the defendant statesâ disparate treatment of voters, Texas argues in Count 2 that âequal protection violations in one State can and do adversely affect and diminish the weight of votes cast in States that lawfully abide by the election structure set forth in the Constitution.â
Finally, in Count 3, Texas asserts a violation of the Due Process Clause of the Constitution. This claim is premised on Texasâs allegation that the election practices of the defendant states in 2020 reached âthe point of patent and fundamental unfairness,â thus violating substantive due process.
These three counts, and the detailed facts Texas alleges, make clear that Texasâs beef is not with the statesâ election laws, but with the statesâ violation of their own election laws, in contravention of the U.S. Constitution.
4. Texasâs Standing to Sue
Texas argues that it has standing, and presents three separate bases for it.
First, Texas claims the right to present the constitutional claims of its citizens, who âhave the right to demand that all other States abide by the constitutionally set rules in appointing presidential electors to the electoral college.â
Second, Texas âpresses its own form of voting-rights injury as Statesâ premised on the structure of the Constitution. âWhereas the House represents the People proportionally, the Senate represents the States,â Texas notes. Thus, âwhile Americans likely care more about who is elected President, the States have a distinct interest in who is elected Vice President and thus who can cast the tie breaking vote in the Senate,â the Texas brief stresses. âThrough that interest,â the brief continues:
States suffer an Article III injury when another State violates federal law to affect the outcome of a presidential election. This injury is particularly acute in 2020, where a Senate majority often will hang on the Vice Presidentâs tie-breaking vote because of the nearly equalâand, depending on the outcome of Georgia runoff elections in January, possibly equalâ balance between political parties. Quite simply, it is vitally important to the States who becomes Vice President.
Finally, Texas argues it has standing to sue as a representative of the stateâs âelectors.â These electors, Texas argues, suffer a âlegislative injury whenever allegedly improper actions deny them a working majority.â Since âthe electoral college is a zero-sum game,â the unconstitutional appointment of electors in other states injures Texasâs electors.
5. Texas Is Not Seeking to Overturn the ElectionâOr Install Trump
These injuries, Texas asserts, demand a remedy. But the remedy sought is not what some may surmise is the goalâa second term for President Trump.
No, what Texas seeks is for the Supreme Court to mandate that the defendant states comply with the Constitution, and that means that electors are selected by the statesâ legislatures. Texas makes this point clear, stressing: âPlaintiff State does not ask this Court to decide who won the election; they only ask that the Court enjoin the clear violations of the Electors Clause of the Constitution.â
6. Texas Brings the Quotes
The Texas attorney generalâs legal team excelled in its briefing. With clear and striking facts and detailed and persuasive argument, Texas has made a solid case for Supreme Court involvement, and along the way, the legal team included some stellar quotesâsome from years past and some new classics, such as this opener:
Our Country stands at an important crossroads. Either the Constitution matters and must be followed, even when some officials consider it inconvenient or out of date, or it is simply a piece of parchment on display at the National Archives. We ask the Court to choose the former.
If the Supreme Court does intervene, it will indeed be âin the spirit of
Marbury v. Madison,â as Texas put it.
While I think these are very important points for SCOTUS to rule on, with the States missing "Safe Harbor" and the House under Pelosi's thumb, I can see her refusing to hold a contingent election, which Trump would surely win. If the House cannot resolve who won the Presidency, then Pelosi, if the Presidential Succession act is Constitutional, would become acting President, though she would have to resign from the House and Speakership before assuming power, and she would only hold that power until either the House could resolve who would be President, or, the Senate could resolve who won the Vice Presidency.
Remember, during this period, after 1/6/21 but before 1/20/20, Pence is VP, and even if the Dems steal both GA runoffs, the GOP and Cocaine Mitch still hold majority control as the GOP holds the Vice Presidency and the tie breaker vote. If they resolve that Pence is VP, then Pence would assume the Powers of the Presidency, until the House determined the winner of the Contingent Election, which Pelosi will refuse to hold, so, unless the Dems dump her as Speaker, which is doubtful, a President will not be selected until Dems lose the majority in 2022 and Speaker McCarthy can finally hold the Contingent Election in 2023.
In the Meantime, while Pence will be "acting President" he will still hold the office of the Vice Presidency, which means he retains his ability to cast the tie breaker vote which keeps McConnell in the majority, even if Dems steal both Senate runoffs.
If Pence is doing a good job, while the Biden Crime Family probe, which is now enveloping Kamala, shows that we dodged a bullet, McCarthy may signal that on returning to the majority, that they may just leave well enough alone and allow Pence to complete his term. And interestingly, the way the 22nd amendment is worded, Pence would be serving as "acting president" in a term for which no was ever elected, which means he would likely remain eligible to be elected to two full terms, though I doubt he would chose to be elected more than once, but, for the first time since the 22nd amendment was ratified, we would have a 2nd term President who wasn't a Lame Duck.
