Election 2020

Conservative Lawmakers and Legal Scholars Denounce Texas Election Suit as 'a Mockery of Federalism and Separation of Powers'

The Constitution “plainly makes the appointment of electors a state-by-state matter.”


Texas Attorney General Ken Paxton asked the U.S. Supreme Court on Monday to directly intervene in the 2020 presidential election by overturning the results in four states—Pennsylvania, Georgia, Michigan, and Wisconsin—that went for President-elect Joe Biden.

In a new legal filing that arrived at SCOTUS yesterday, a prominent group of conservative lawmakers and legal scholars have denounced the Texas lawsuit as "a mockery of federalism and separation of powers." Among its signatories are former Sen. John Danforth (R–Mo.), University of St. Thomas law professor Michael Stokes Paulsen, former Department of Homeland Security official Paul Rosenzweig, and Princeton University legal scholar Keith E. Whittington. Those names are all known and respected among the justices of the Supreme Court.

The case is Texas v. Pennsylvania. Under Article III, Section 2 of the Constitution, the Supreme Court has "original Jurisdiction" in certain types of cases, including "Controversies between two or more States." Most of the time, the Supreme Court exercises "appellate jurisdiction," which means that it reviews the actions of lower courts. As I noted yesterday, "no state has ever pulled off a stunt even remotely like overturning the results of a presidential election by going straight to SCOTUS to challenge the results in another state."

The conservative lawmaker/scholar filing argues that if Texas succeeds the result "would violate the most basic constitutional principles." That is because the Constitution "plainly makes the appointment of electors a state-by-state matter….That is the opposite of a controversy between two or more states."

The Constitution does say exactly that. Consider the relevant language from Article II, Section 1: "Each State shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors….The Electors shall meet in their respective States." (Emphasis added.)

To be sure, the Electors Clause is not a blank check. As the filing also points out, citing Bush v. Gore (2000), the Supreme Court "can exercise discretionary appellate review if state election law, or any remedial issue thereunder, as interpreted by a state supreme court, violates 'some other constitutional constraint." But "that is not remotely this case."

It sure isn't. The presidential election results in Pennsylvania, Georgia, Michigan, and Wisconsin have all been adjudicated by the courts in each of those states and the respective challenges to Biden's wins have failed. The losing sides in those cases—meaning President Trump and his allies—are certainly entitled to ask SCOTUS to hear their appeals. But Texas has no such standing to sue those four states directly at SCOTUS over their election results.

The conservative lawmakers and legal scholars end their filing by urging the Supreme Court to reject Texas' "request to transfer the powers of 50 state court systems to this Court." What Texas seeks is "an unprecedented expansion of [federal] judicial power," the filing states, quoting from Rucho v. Common Cause (2019). "The expansion of judicial authority would not be into just any area of controversy, but into one of the most intensely partisan aspects of American political life. That intervention would be unlimited in scope and duration—it would recur over and over again around the country with each" presidential election.

The filing is available here.