The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Monday, Texas filed the most audacious lawsuit of the 2020 election season: An effort to have the Supreme Court prohibit four other states—Georgia, Michigan, Pennsylvania, and Wisconsin—from selecting presidential electors in accord with the election results certified in each of those states. In this post, I provided some initial thoughts about that lawsuit here, identifying some of the jurisdictional and other problems with the suit. David Post highlights some statistical stupidity that made it into the filings here and here.
In filing this suit against four of its sister states, Texas invoked the Supreme Court's original jurisdiction. Accordingly, Texas submitted several filings, led by a Motion for Leave to file a Bill of Complaint, which is basically the way a state seeking to invoke the Court's original jurisdiction asks the court for permission to file. Additional filings included briefs supporting the motion and requests for extraordinary relief, in this case injunctions against four other states selecting presidential electors based upon the November 3 election results. As Ilya explains, the effort to invoke original jurisdiction raises some interesting issues, not least whether the Court even has the discretion to deny such a request. As recently as this past February, two justices (Thomas and Alito) expressed the view that the Court is obligated to grant such motions and hear state claims.
The Court set Thursday as the deadline for the defendant states to respond to the Texas filings. In the meantime, the docket lists several new filings in the case.
The first brief supporting Texas to be filed came from 17 state attorneys general, led by Eric Schmitt of Missouri. This is a very squirrelly brief. On the one hand, the brief claims numerous non-legislative officials violated the constitution by making changes to election rules to account for Covid-19 (much like happened in Texas too, shhhh!), that such changes increased the risk of fraud, and that Texas has raised "important questions about election integrity" that the Court needs to address. On the other hand, it confines itself to the Electors Clause claim, never mentions the Equal Protection or Due Process claims, and never endorses the Lone Star State's call for extraordinary relief or the invalidation of presidential electors.
At times the brief speaks aggressively of "unconstitutional encroachments on the authority of state Legislatures" committed by officials in the defendant states. At other times the brief merely notes that Texas "alleges" unconstitutional actions. It is almost as if these portions of the brief were written by different sets of attorneys (which is possible given the speed with which this was put together). It would not surprise me if some AGs wanted to endorse the Texas arguments whole hog, while others wanted to maintain a critical distance, and this internal tension was never resolved.
Taking the brief as a whole, it seems clear that at least some of the signatories were hoping to appease Trump supporters within their states (and perhaps forestall primary challenges in future elections), without endorsing the Texas arguments in toto. I cannot imagine that all the AGs are comfortable with the idea that one state can sue to challenge the way another state conducts its elections. Is this is a precedent the AGs who signed on want to set? Do red states really want to create a precedent for blue states challenging their election rules?!? If you doubt that could happen consider that in 1966 Delaware tried to file an Equal Protection claim against New York objecting to the latter's winner-take-all means of allocating electoral votes. This system, Delaware claimed, diluted Delaware's electoral votes and the votes of its citizens. By supporting the Texas suit, these AGs are virtually inviting more of this sort of litigation.
Note that if state legislators or candidates believe that non-legislative actors have violated the legislatively authorized election scheme in a given state, they have ample ability to press such claims in state court (provided they do it in a timely manner), and state legislatures retain the ability to act if an election does not result in a certified result that produces the selection of presidential electors. In other words, accepting the principle that state legislatures must set election rules does not lead to the conclusion that one state can sue another for adopting the wrong set of election rules.
Arizona also filed a motion for leave to file an amicus brief (but without the brief attached, as is traditional), stressing the need to resolve this dispute quickly.
As promised on Twitter, the President has joined the fray. Professor John Eastman has filed briefs on behalf of Donald Trump, seeking to intervene in the case and endorsing the call to enjoin the defendant states from appointing electors in accordance with their certified election results. The brief opens by discussing how many American believe the election must have been stolen because Trump increased his share of non-white voters and won bellwether states (Ohio and Florida) and bellwether counties. It has a section of "additional facts" that is focused on Georgia, and claims that the rate at which absentee ballots were rejected in Georgia dropped precipitously. Yet these claims are directly contradicted by the Georgia Secretary of State (see also here).
On the legal issue, the Eastman/Trump filings follow Texas in identifying the kernel of a valid legal argument–state legislatures determine the manner of selecting presidential electors–and on that basis asserting that any and all actions taken by executive branch officials, state election officials and state courts affecting election rules are therefore unconstitutional. While it is true that state courts cannot wholly rewrite state election law, as some would argue the Florida Supreme Court did in 2000, there is nothing in the Constitution that prevents state legislatures from delegating authority to state election officials or authorizing state courts to adjudicate election-related disputes as part of the overall legislative scheme, as the three-justice concurrence in Bush v. Gore affirmed. It is an indication of how extreme the Eastman/Trump arguments are that they go well beyond the bounds of the Bush concurrence. [Update: Based on the brief's metadata, it also appears that the brief may have been drafted by Lawrence Joseph, who is one of the attorneys listed on the Texas brief. If so, I'm not sure how kosher that is.]
Today also saw the submission of a brief of "constitutional attorneys" including disgraced former Alabama Supreme Court Justice Roy Moore (who does not understand the constitution) also filed a brief arguing that the Constitution endorses Texas's arguments, and then goes on to argue that "advance voting schemes" are unlawful, while stopping just short of alleging that absentee voting is unlawful.
Saving the best for last, there is also an amicus filing on behalf of lawyers and others who have served in government as or on behalf of Republicans, including Carter Phillips, Stuart Gerson, Donald Ayer, John Bellinger III, and John Danforth. It also includes a few prominent conservative academics, including Michael Stokes Paulsen and our own Keith Whittington. It highlights the extreme nature of what Texas is requesting and is directly aimed at the Court's conservative justices.
Here's a taste:
There are myriad reasons to deny Plaintiff's Motions. This amici brief focuses on one: the Constitution does not make this Court the multidistrict litigation panel for trials of presidential election disputes. Pursuant to the Electors Clause and 3 U.S.C. § 5, state legislatures have made state courts the tribunals for presidential election disputes. This Court's only jurisdiction is appellate.
The Electors Clause and 3 U.S.C. § 5 contradict the Plaintiff's unprecedented argument that a presidential election dispute is a controversy between two or more states. These provisions contradict Plaintiff's argument by authorizing each state to delegate by statute the adjudication of all controversies or contests concerning federal presidential election results in that state to that state's courts. Such statutory delegation to state courts is part of each state legislature's chosen statutory "manner" for presidential elections as much as are the statutes on, for example, mail-in voting. A state's chosen "manner" applies "exclusively," McPherson v. Blacker, 146 U.S. 1, 27 (1892), "absent some other constitutional constraint." Chiafalo v. Washington, 140 S. Ct. 2316, 2324 (2020) (emphasis added). There is no constitutional constraint against state courts being the trial courts for presidential election disputes.
Moreover, 3 U.S.C. § 5 expressly and properly enables a state to designate "its" state tribunals as the "conclusive" arbiter of "any controversy or contest concerning" presidential election results in that state. (Emphasis added.) In the rare instance that a state supreme court's ruling violates a federal constitutional provision or statute, this Court has appellate jurisdiction. See, e.g., Bush v. Gore, 531 U.S. 98, 100-01 (2000) (per curiam).
Plaintiff's Motions make a mockery of federalism and separation of powers. It would violate the most fundamental constitutional principles for this Court to serve as the trial court for presidential election disputes. . . .
Federalism and the separation of powers protect our liberties. See Shelby County v. Holder, 570 U.S. 529, 543 (2013). They "divide power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day." New York v. United States, 505 U.S. 144, 187 (1992). Consistent with these principles, the Constitution and Congress have enabled each state to provide law and to adjudicate in its courts all controversies about the presidential election in that state.
This Court should reject Plaintiff's request to transfer the powers of 50 state court systems to this Court. The caution of Rucho v. Common Cause, 139 S. Ct. 2484 (2019), fits here even more:
What the [Plaintiff] seek[s] is an unprecedented expansion of [federal] judicial power. . . . 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]. Consideration of the impact of today's ruling on democratic principles cannot ignore the effect of the unelected and politically unaccountable branch of the Federal Government assuming such an extraordinary and unprecedented role.
My only real quibble with this brief is I am not sure I would deny Texas's Motion for Leave. Rather, I would be inclined to grant the motion, and then deny the request for emergency relief and dismiss the case for lack of jurisdiction and failure to state a claim. The end result, however, would be the same.
As noted, the defendant states will file their response Thursday, so the earliest the Court is likely to act is Thursday evening or Friday. The response and any additional filings will be posted on the Court's docket page for the case here.
[Note: I edited this post to fix an awkward sentence and some typos, including saying there were 18 states on the Missouri-led brief instead of 17.]