Elections

How the Supreme Court Can Swiftly Dispose of the Texas Lawsuit Seeking to Overturn the Election [Updated]

The case is within the Court' original jurisdiction. But longstanding precedent still allows the Court to dismiss it without full consideration.

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Flag of Texas.

 

Yesterday, the state of Texas filed a lawsuit essentially asking the Supreme Court to reverse the outcome of the presidential election in four key swing states—Georgia, Michigan, Pennsylvania, and Wisconsin, thereby potentially giving Donald Trump a second term he failed to win at the ballot box. The case has been roundly denounced by legal commentators as utterly lacking in merit. Prominent election law scholar Rick Hasen summarizes some of its defects and concludes that it may be the "the dumbest case I've ever seen filed on an emergency basis at the Supreme Court." Co-blogger Jonathan Adler points out a variety of procedural flaws in the case. David Post highlights its reliance on bogus statistical "analysis."

However, because this case is a lawsuit filed by one state against others, it falls within the Court's "original jurisdiction"—the narrow set of cases that can be filed directly in the Supreme Court, without first being considered by lower courts. Therefore, the justices may not be able to reject it in the same way as they just refused to hear a GOP lawsuit seeking to overturn the result in Pennsylvania.

At the same time, however, there is precedent for the Court dispensing with state vs. state original jurisdiction lawsuits without a full hearing or opinion. In 2016, that's exactly what the Court did with a lawsuit filed by Nebraska and Oklahoma seeking to force neighboring Colorado to rescind its legislation legalizing marijuana under state law. The justices disposed of the Nebraska-Oklahoma lawsuit in a one-sentence order. Here it is in all its glory:

The motion for leave to file a bill of complaint is denied.

Nothing prevents the Supreme Court from doing the same thing with the Texas case (which some other red states might sign on to). Like the Texas case, the Nebraska-Oklahoma lawsuit had no real merit and was roundly denounced by legal commentators across the political spectrum. I summarized its weaknesses and linked to critiques by others here. The justices apparently concluded it wasn't worthy of the Court's full attention, and acted accordingly.

In a dissent joined by Justice Alito, Justice Clarence Thomas argued that the Court lacks the authority to dispense with original jurisdiction cases in such a cursory fashion. I think he makes some good points, particularly that—unlike with virtually all other cases—cases within the exclusive original jurisdiction of the Supreme Court cannot be heard by lower federal courts, so SCOTUS is the only possible venue for them. But Thomas recognized that the Court's disposition of the marijuana legalization case was backed by longstanding precedent, under which the justices often dismiss bogus original jurisdiction cases without full consideration on the merits:

Federal law does not, on its face, give this Court discretion to decline to decide cases within its original jurisdiction. Yet the Court has long exercised such discretion, and does so again today in denying, without explanation, Nebraska and Oklahoma's motion for leave to file a co-plaint against Colorado…

[T]he Court has exercised discretion and declined to hear cases that fall within the terms of its original jurisdiction. See, e.g.,United States v. Nevada, 412 U. S. 534, 537–540 (1973) (per curiam) (controversy between United States and individual States); Ohio v. Wyandotte Chemicals Corp., 401 U. S. 493, 500–505 (1971) (action by a State against citizens of other States). The Court has even exercised this discretion to decline cases where, as here, the dispute is between two States and thus falls within our exclusive jurisdiction. See, e.g., Arizona v. New Mexico, 425 U. S. 794, 796–798 (1976) (per curiam). The Court has concluded that its original jurisdiction is "obligatory only in appropriate cases" and has favored a "sparing use" of that jurisdiction. Illinois v. Milwaukee, 406 U. S. 91, 93–94 (1972).

Since the Court issued this 6-2 ruling in 2016, three new justices have been appointed by Trump, including Neil Gorsuch who filled the seat vacated by the death of Justice Antonin Scalia a few weeks before the Oklahoma-Nebraska case was decided. If all three of the new justices support Thomas' position, the Court might not be able to dispose of the Texas case quite as easily. But even in that event, it could still deal with it in a short per curiam opinion, and does not necessarily have to go through extensive briefing and oral argument. There is no statute or constitutional rule requiring the latter.

In addition, I doubt that there will be a majority in favor of reversing longstanding precedent in this field. In an age of grandstanding state AGs, the Court might be inundated with numerous bogus state vs. state lawsuits if all had to be given full consideration, and thereby got the attendant "free" publicity. Blue states could challenge their neighbors' allegedly lax environmental and gun control laws. Red states could attack blue state laws on drugs and immigration (as Nebraska and Oklahoma did). Both sides could target election laws they disapprove of. And so on. Embattled Texas Attorney General Ken Paxton is far from the only poseur who might relish an opportunity to excite his base with a legally dubious high-profile case, if he or she could be assured of getting it into the nation's highest court. [see Update 3 below for an additional indication why Thomas' position is unlikely command a majority on the Court].

When the Nebraska-Oklahoma case came down, I suggested it might have been better if the Supreme Court issued at least a brief substantive opinion explaining why the lawsuit was without merit. It could even perhaps have been structured as an explanation for why the leave to file a complaint was denied. Perhaps the same thing should be done here. But, regardless, the Supreme Court need not take long in dispensing with this turkey. And I suspect they in fact will not.

UPDATE: It is perhaps worth noting that Thomas and Alito's position in favor of giving the Nebraska-Oklahoma case greater consideration probably was not an indication that they sympathized with the plaintiff states on the merits. Just two years later, Alito wrote the Court's opinion in Murphy v. NCAA, holding that the federal government had no power to force states to ban activities under state law, and Thomas voted with the majority. If the federal government lacks such authority, it is even more clear that one state cannot force another to do so.

UPDATE 2: I have made some minor changes in wording in this post.

UPDATE 3: Jonathan Adler points out that the Supreme Court again refused to consider a state vs. state original jurisdiction case earlier this year, in Arizona v. California. Thomas once more dissented on the same grounds as in the Nebraska-Oklahoma case, and Alito once again joined him. But it is notable that none of the other conservative justices did, including Trump appointees Neil Gorsuch and Brett Kavanaugh. This makes it even less likely that there will be a majority for Thomas' position (even assuming newly appointed Justice Amy Coney Barrett agrees with Thomas, which is by no means certain).

 

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  1. I wouldn’t have expected anything less from a rabidly partisan Democrat.

    Your partisanship continues to be unsurprising, Ilya.

    1. Um ….

      Muahahhahahahahahahahahahahaha!

      This is truly bringing out the best stuff. I need it mainlined into my veins.

      1. Letitia James is on TV right now trying to out-stupid Paxton. It is an uphill climb, but she is really trying.

        2020 truly is the year that keeps on giving.

    2. A reasonable argument is not partisan, it’s reasonable.

  2. Or the court can do its damn job and hear the case, instead of giving you the corrupt, rioting Democrats to sell us out to China you want.

    1. What case?

      They haven’t developed any evidence yet.

      From reading the complaint I don’t even think they can assert standing.

      I would love to see them develop the evidence and prove fraud, but they haven’t done that yet. Current audits and investigations in AZ, and GA may do that, but filing lawsuits without any supporting evidence is just Avenetti style grandstanding.

      1. What Texas is doing is indeed consistent with federalism (i.e. State’s Rights), insofar that the states are charted into a compact that elects the president of the U.S.
        In most things, federalism provides that each state is sovereign in its laws and administration.
        But pursuant to that Constitutional compact on presidential elections, a given state can be aggrieved by another’s actions that undermine its own access to the process of election. That compact is a collective process, and one state’s actions does indeed affect another’s, when it games the system to make its own process expedient and violative of due process.

  3. The Prime Directive of the Court is to protect the Court. Bush v. Gore was a near death experience, and this would be 100x worse. No way they are getting anywhere near this colossal goatfuck. The cult of personality Trumpians deluded to the contrary are in for a rude awakening.

  4. I feel so sorry for Ilya. TDS is a terrible thing.

    1. TDS is something that Trump supporters Rudy, Sidney, Newt and a bunch of others have. Really, listen to their mindless rants and compare that to the reasoned logic of this post.

      1. That’s the thing- the trump idiots here don’t have the mental capacity to recognize a valid argument. It’s why they continue to listen to Trump and co. even after the 10 millionth lie.

  5. This is getting embarrassing. If there was enough voter fraud to turn the election then just asserting it without proof is less than worthless and just grandstanding and lazy.

    The only way to proceed with these allegations is to develop iron clad proof. And probably the best venue for investigating these allegations is the state legislature.

    That is already happening in AZ, GA, MI, and PA. The legislature has the authority to do a thorough investigation, and at least in GA and AZ they have a GOP governor to support them. Coincidentally the states with the smallest margin of victory were AZ ~10,500 and GA ~11,700.

    They need to shut up, do the work to audit the elections and then go on from there. If they find the proof it won’t reverse this election, but any party caught cheating to take the presidency is going to be punished by the voters for decades.

    1. If there was enough voter fraud to turn the election then just asserting it without proof is less than worthless and just grandstanding and lazy.

      What makes you think the state legislatures are going to turn up evidence the Trump team couldn’t find?

      They need to shut up, do the work to audit the elections and then go on from there.

      The trouble is, they aren’t going to do that. What are they going to “audit?” Are they going to do a recount? Been done, twice in GA, and once partially in WI.

      What will happen is a regurgitation of the same baseless claims we’re hearing over and over, and then we’ll get a committee report supporting them, and a minority report refuting them, and then we’re back where we started.

      Do we really need to hear from the Melissa Carones of the world one more time?

      Look, if you want to do some sort of audit, then define what you are looking for – careless procedures, outright fraud, what? – and then name some serious people to a nonpartisan commission to look into plausible claims. You want election experts, statisticians, and I suppose you have to have lawyers, but a legislative committee out for blood isn’t going to give you an honest result.

      1. The state legislature has subpeoana power, they can compel witnesses, especially state employees, and they can require documents to be produced. And they don’t need probable cause do do any of those things

        None of which Trump’s lawyers can do on their own.

        If there is no fraud there is no reason to fear a legislative audit.

        1. If there’ so collusion, you don’t have anything to fear from a special counsel investigation.

          If you didn’t commit tax fraud, there’s no reason to keep your tax filings from the NYC DA.

          If you didn’t violate campaign finance laws, there’s no reason to not pardon Michael Cohen as he didn’t either.

          If you didn’t break the law in your lobbying business or your activities ostensibly on behalf of the president elect, there’s no reason to lie to the FBI.

          etc.

          1. It’s just not the same thing when a state legislature does oversight on an election. They aren’t prosecuting anyone. They are assuring that the legislation they wrote is working properly to insure free and fair elections, and the money they are spending is not being spent on faulty voting machines. It’s the legislature’s voting system, they have every right to audit it, for any reason they want.

            You might also look at the question in other contexts, the House went to the Supreme Court to compel the IRS to provide them Trump’s tax returns, not to persecute Trump (or so they claimed) but for oversight to determine if any legislation might be needed to …. well whatever they may need to legislate. They won, mostly, so there is a recent precedent for vigorous legislative oversight without allegations of wrong doing or probable cause.

      2. The only value in a hand recount would be to find evidence of machine manipulation. Nobody would have done that with the Dominion system, contrary to what a lot of people seem to think because of the paper ballot backup. Real vote fraud would have to be done with the mail-in ballots and it would have to be done in an even swap of Biden for Trump ballots. Just dumping more ballots for Biden would cause discrepancies with the poll books. An even swap would allow reconciliation with the poll books but there is one more hurdle and it’s the precincts. The precincts have to know who voted mail-in which they get from the outer envelope, but they also have to know the vote tally which they get from the inner envelope and/or the ballot itself. So a dump that doesn’t substitute ballots precinct by precinct will show up immediately with lots of precincts being out of balance. (That may be routine in Atlanta but it isn’t in the suburbs and the rural precincts, and as far as I know the mail-in ballots were not sorted by area.)

        That would be a tedious and time-consuming process and in all the battleground states the big shift in Biden’s favor occurred in the early morning of Nov. 4. Even assuming the fraudsters could get unobserved access for four or five hours I still think it would be impossible to shift a large enough number of ballots. So for now I have concluded that there wasn’t a vote swapping fraud.

        1. Is this just a cut and paste, without reading the article?
          This is not a voter fraud controversy.
          It is a due process and constitutional due process violation claim, affecting the plaintiffs’ own right to access the presidential vote.
          If other members of the state/federal compact violate due process to game their own voting system, then that adversely affects other members of the compact, like Texas et al.

          1. Do you fancy yourself a moderator or something? I was responding to Bernard’s question about what you would look for in an audit. I don’t give a shit about what you consider the boundaries of discussion.

    2. ” If there was enough voter fraud to turn the election then just asserting it without proof is less than worthless and just grandstanding and lazy.”

      They’re not asserting “fraud”, they’re asserting “illegality”. Not all illegality is fraud. For instance, if a polling official took a bin of uncounted ballots and set fire to it, it wouldn’t be “fraud”, now, would it?

      There’s all sorts of talk of fraud, sure, but what Texas et all are alleging is “illegality”. That election laws were systematically violated.

      NOT “fraud”.

      1. If there is no allegation of fraud then what is all that statistical idiocy about?

        1. Trying to establish that the illegalities might have changed the election outcome, since the courts don’t normally care if government breaks the law, unless somebody suffers a “harm”.

          “No harm, no foul” is a big thing when it’s the government on the dock. Not so much for people in the private sector.

          1. Where is the injury in fact to the State of Texas from other states´ alleged failure to follow election laws? That is a snipe hunt.

        2. You are not reading either this article, nor the original complaint.
          Low information commenter, of course you have no idea of what’s going on.

      2. What is Texas’s standing for filing a lawsuit alleging election laws were not followed to the letter in PA or WI.

        I am sympathetic to their claims, but the way they are going about it is our old familiar ‘failure theater’.

        1. What Texas is doing is indeed consistent with federalism (i.e. State’s Rights), insofar that the states are charted into a compact that elects the president of the U.S.
          In most things, federalism provides that each state is sovereign in its laws and administration.
          But pursuant to that Constitutional compact on presidential elections, a given state can be aggrieved by another’s actions that undermine its own access to the process of election. That compact is a collective process, and one state’s actions does indeed affect another’s, when it games the system to make its own process expedient and violative of due process.
          So Texas would have standing, as it is non-severable part of the collective vote of the states for the president. If other members of the compact cheat, it inevitably affects and damages all other members of the compact who did not cheat.

          1. No.

            Each State legislature determines the manner of choosing its own Electors. No other State has a say in that process beyond its own borders.

            You are flatly, irrefutably wrong.

  6. A state, just like any other plaintiff in our system of legal jurisprudence has no absolute right to be heard in court, any court including the U. S. Supreme Court. A requirement to hear this case must be an affirmative point in law, not just a lack of a negative.

    As for this case, if the three Trump appointees join Thomas and Alito and allow a hearing on this utterly bogus, futile, rediculous and non-serious filing they will bring down such criticism, revulsion and redicule that even Thomas and Alito will be embarassed. And embarassing those two is a steep, almost impossible mountain to climb, but embracing this garbage would do the trick.

    One prefers that the Court just issue its patented one sentence dismissal as even acknowledging the case would give it more attention and credibility than it deserves. However if a Justice wanted to truly give the case its due, well that would not be so bad either.

    1. At this point at least 16 states have joined the Texas litigation. I suppose that doesn’t actually change the legal merits, but it makes it a little harder for the Court to casually dismiss the case.

      Standing aside, there’s a pretty important question here: Are state election laws laws, or are they suggestions?

      Because a fair number of states’ executive and judicial branches treated them as merely suggestions this year, and we really need to know if this country still HAS election laws, or everything is just up for grabs.

      1. At this point at least 16 states have joined the Texas litigation.

        Wrong again. Amicus and intervention is not the same thing.

    2. So, you think the case has merit.

  7. Are the clingers tired of winning yet?

    I’m not tired of stomping their lawyers and claims into submission, ridicule, and irrelevance. I understand this is not the Republicans’ first team, but I sense the first team would have sustained similar humiliations and whippings.

    The time for appeasing dumbasses has concluded. We likely have reached the point at which it would be reasonable to start revoking bar admissions and imposing financial sanctions against the parties.

  8. “Prominent election law scholar Rick Hasen summarizes some of its defects and concludes that it may be the “the dumbest case I’ve ever seen filed on an emergency basis at the Supreme Court.” ”

    Makes it perfect for the idiots here then!

    Why not just have Biden seek to overturn the results in states that Trump won then? I guess he’s not enough of a traitorous fuckface to attempt that.

    1. ” Prominent election law scholar Rick Hasen summarizes some of its defects and concludes that it may be the “the dumbest case I’ve ever seen filed on an emergency basis at the Supreme Court.” ”
      The right-wing idiots from Pennsylvania held the ‘dumbest case I’ve ever seen’ title from Rick Hasen for all of eight days (six if you acknowledge the point that the Pennsylvania claimants originally filed in the wrong court, and properly did not reach the Supreme Court until a couple of days later).

      If Ken Paxton loses his law license on his way to prison, that would be delicious.

      ” Makes it perfect for the idiots here then! ”

      The carefully cultivated class of conservative followers of this right-wing blog will gobble this nonsense with a spoon. The Volokh Conspiracy seemingly was created just for this moment of Republican lunacy.

  9. I expect this stuff to get even weirder in the next couple of days.

    The Ted Cruz cameo was nothing compared with what I sense is about to occur.

    That the Republican Party and conservatives are condoning, cheering, and conducting this aggressive dumbassery is remarkable. At this point, perhaps nothing other than a rapture could save them.

  10. I sincerely doubt you have ever “stomped” anyone in a court of law.

    1. I was referring to the Texas foolishness — regarding which I hope the Supreme Court gives Paxton a two-or- three-hour opportunity to reconsider his filing before imposing severe, personal sanctions — but this is, so far, a stomping with more finality.

      (I haven’t finished the Texas pleading, but it could be headed toward an even more humiliating end.)

      1. And you had what, exactly, to do with that?

  11. So, where exactly is the claim that state executive officials (and state courts) violated the Elections Clause by disregarding the election rules set by the Legislatures to be heard and adjudicated?
    Surely every Constututional requirement must have a process to enforce it?

    1. You would think so, but there are whole swaths of the Constitution that the Supreme court has absolutely no interest in permitting to be enforced. The origination and quorum clauses, for instance.

    2. “So, where exactly is the claim that state executive officials (and state courts) violated the Elections Clause by disregarding the election rules set by the Legislatures to be heard and adjudicated?”

      In the federal courts, when brought by a plaintiff with standing, when not time-barred, who is making a credible case supported by verifiable evidence. Which was the case with any number of legal challenges to voting processes brought prior to the election. In fact, the Trump campaign spent literally months pursing litigation along these lines, much of it successfully.

    3. ¨So, where exactly is the claim that state executive officials (and state courts) violated the Elections Clause by disregarding the election rules set by the Legislatures to be heard and adjudicated?¨

      Adjudication of that question requires a plaintiff with standing to assert: (1) a particularized injury in fact, (2) fairly attributable to the conduct of the defendant(s), (3) which is capable of being redressed by a remedy which the court can grant. Injury in fact may be limited to legislators in the affected state.

  12. “Therefore, the justices may not be able to reject it in the same way as they just refused to hear a GOP lawsuit seeking to overturn the result in Pennsylvania.”

    A little clarification: The Supreme court order actually says, “The application for injunctive relief presented to Justice Alito and by him referred to the Court is denied.”

    What was refused was an, “EMERGENCY APPLICATION FOR WRIT OF INJUNCTION PENDING THE FILING AND DISPOSITION OF A PETITION FOR A WRIT OF CERTIORARI” In other words, just an injunction prior to filing the actual case.

    Does this actually amount to a preemptive denial of the potential petition for a writ of certiorari? Or merely hint that it would not be granted?

    1. Mike Kelly and Sean Parnell seem plenty dumb enough to continue to pursue their claims — which are mostly political advertising designed to lather up the especially gullible, stupid Republicans and shake a few more pennies from their tattered overalls — until a court bans additional filings and imposes sanctions.

    2. As I read it, certiorari has not been denied. I’m not sure why everyone has been saying it has – propaganda, perhaps?

  13. I think this case has too much public attention to be dismissed in a one sentence decision, even if they can legally do so.

    The problem with not hearing the evidence and ruling on it, is that it would be the best possible outcome for Trump and his believers, assuming that their actual evidence is not compelling enough to win on its merits.

    If the court dismisses the case without allowing the case to be heard, Trump can forever claim that he was right, and his followers will forever believe that they would have won had they been allowed their day in court .

    I think SCOTUS is still a political institution interested in maintaining the appearance of absolute legitimacy.

    You don’t want the Trump side to be forever asking what SCOTUS were afraid of.

    It might actually be worth wasting a little time for.

    This situation is unique and they shouldn’t fear a precedent of States abusing the privilege in the future. They can always give their one sentence answer in those cases.

    The best way to end this once and for all is to allow the people who claim that the election was illegally decided to prove it in front of a majority right leaning SCOTUS.

    If they get destroyed by the opinion to follow, it will relegate true Q believers to the fringe where they belong. They can see how their accusations of George Soros and Tom Hanks recruiting the SCOTUS judges into their cabal of sacrificing sexually abused babies to Satan goes over with the majority of Americans.

    1. The only thing unique about the situation is that Republicans have refused to admit that 1+1=2 and up isn’t down. There is no good faith dispute here, and if the Supreme Court dignified this with more than another one-sentence dismissal it would immediately turn into the biggest judicial circus in the history of our country. It would be dumping TNT onto a bonfire of stupidity.

    2. RM – there isn’t anything the judges could write that would convince these people. The vast majority wouldn’t even read the opinion, they’d just go straight to labeling more justices as traitors or corrupt.

      Even if they did read it….well, look at some of the commenters here. They can’t even understand when someone like Robby Soave is [i]on their side[/i] on an issue; they get completely flummoxed because he includes one or two sentences summarizing the opposing viewpoint in order to dismiss it. No way they could read and comprehend something written by Kavanaugh or Barrett.

  14. However, because this case is a lawsuit filed by one state against others, it falls within the Court’s “original jurisdiction”—the narrow set of cases that can be filed directly in the Supreme Court, without first being considered by lower courts.

    What the constitution actually says on the Supreme Court’s original jurisdiction

    In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.

    Note, that’s a state (singular). The Supreme Court’s original jurisdiction here is not dependent on it being one state suing another state. Technically the Supreme Court would have original jurisdiction in a case of an individual private citizen suing a state.

    1. You also need to look at 28 USC 1251 (sub (a) in particular):

      (a)The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.
      (b)The Supreme Court shall have original but not exclusive jurisdiction of:
      (1)All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;
      (2)All controversies between the United States and a State;
      (3)All actions or proceedings by a State against the citizens of another State or against aliens.

      1. The operative word in subsection (a) is controversies. That incorporates Article III standing requirements.

      2. “You also need to look at 28 USC 1251 (sub (a) in particular):”

        I have to partially disagree with this. Congress can potentially add to the SCs original jurisdiction by statute, but they can not by statute subtract things the SC is given original jurisdiction over by the constitution itself.

        Therefore: 28 USC 1251(a) is void. It is not needed to give SC original jurisdiction in such cases, and it can not (by implication) remove from the SCs original jurisdiction cases where only one state is a party.

  15. Eastman with Texas,
    like Cruz and Pennsylvania:
    doomed, grandstanding jerk

  16. Keep hoping, Ilya.

  17. And yet, Gonzales v. Raich, Cal, personal, home, medicinal, state-legal was “potential” for interstate commerce. But actual weapons modeled for war, that blow up 5 year old bodies, or venison – and after the AWB report WAS conclusive viz hi cap mags, cross into San Bernadino, Gilroy, Chicago, etc., etc., are not IC.

    2A precedes 3A, for a reason.

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