The Volokh Conspiracy

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Election 2020

Are Some of the State Attorneys General Supporting the Texas Election Suit Getting Cold Feet? [UPDATED in Light of Ohio Filing]

17 states submitted a brief supporting Texas Attorney General Ken Paxton's effort to prevent the selection of electors in four states, but only 6 joined today's motion to intervene. [Update: Meanwhile, Ohio files a brief that's worth reading.]


Six states attorneys general, led by Missouri AG Eric Schmitt, have moved to intervene in Texas v. Pennsylvania, the lawsuit filed by Texas Attorney General Ken Paxton that seeks to prevent the selection of presidential electors based upon the November election results in four states (Pennsylvania, Georgia, Wisconsin, and Michigan). Yesterday, 17 states, also led by Missouri AG Schmitt, filed an amicus brief in support of the Texas suit. I wrote about that filing here.

There are a few notable things about today's filing. First and foremost, it is notable than only six of the states that joined yesterday's amicus brief (Missouri, Arkansas, Louisiana, Mississippi, South Carolina, and Utah) were willing to join today's motion to intervene and join the Texas Bill of Complaint. This suggests that some of the state AGs who were willing to say that the claims raised by Texas are sufficiently serious to warrant the Court's attention were not willing to actually endorse the substance of those claims. Perhaps this indicates there is only so far they are willing to go to virtue-signal their support for the Trump tribe. (Yesterday's filing from Arizona can be viewed in a similar light.) In the alternative it could simply represent discomfort with some of the claims this new briefing supports, which leads to my next point.

In seeking to intervene, the states did not submit their own proposed Bill of Complaint. Rather, they seek to join the Bill of Complaint submitted by Texas, as modified by the Bill of Complaint submitted on behalf of Donald Trump. As their Bill of Complaint in Intervention states:

The Intervening State Plaintiffs adopt by reference and join in the Bill of Complaint submitted by Plaintiff State of Texas as modified by President Trump's Bill of Complaint in Intervention in all aspects, including the statements of Jurisdiction, the Parties, Additional Facts, Count I (alleging a violation of the Elector's Clause) and the Prayer for Relief.

In other words, these six states are endorsing everything in the Texas and Trump Bills of Complaint, including the absurdly stupid statistical claims, the misrepresentation of what occurred in other Supreme Court litigation concerning absentee ballots in Pennsylvania, and the Trump's briefs uncited claims about Georgia absentee ballot rejection rates that are directly refuted by the data released by the (Republican) Georgia Secretary of State, in addition to the underlying legal theory that states can sue to challenge the lawfulness of election rules and their administration in other states.

All in all, it is a sad showing from the attorneys general of these six states.

UPDATE: As I was composing this post, Ohio Attorney General Dave Yost filed a brief in support of neither party that endorses the principle that state legislatures are uniquely authorized to control the manner of selecting presidential electors, but opposing the relief sought by Texas. It is definitely worth a read.

To be crystal clear about the Ohio brief, it does not support the Texas filing, but it does support the claim that state legislatures set the rules governing the manner in which presidential electors are selected, and this does place some limits on the extent to which state courts or executive branch officials may make unauthorized changes to state election rules in presidential elections. Moreover (and this is a key point), it limits the sort of relief that federal courts can offer as well.

From the Ohio brief:

Ohio has previously argued that this Court has mandatory jurisdiction in original actions, and that it therefore lacks authority to deny leave to file bills of complaint. See Arizona v. Sackler, No. 22O151, Br. of Ohio and amici States (Sept. 26, 2019). Its amicus brief in this case will address something else: the proper understanding of the Electors Clause, U.S. Const. art. II, §1, cl.2; the incompatibility of the Clause and the remedy that Texas seeks; and the need for a Supreme Court ruling, at the earliest available opportunity, on the proper application of the Clause to cases in which state courts or state executive officers alter election rules in presidential elections. . . .

Article II of the Constitution directs that "[e]ach State shall appoint" presidential electors "in such Manner as the Legislature thereof may direct." Art. II, §1, cl.2. Whatever "the Legislature thereof" means, it does not mean "the courts thereof." Thus, when state election codes dictate the manner for appointing presidential electors, state courts must respect the legislature's work: they may not change the rules by which electors are chosen through judge-made doctrines or by rewriting statutes in the guise of interpretation. See Democratic Nat'l Comm. v. Wis. State Legislature, 592 U.S. __, slip op. 9 n.1 (2020) (Kavanaugh, J., concurring); Bush v. Gore, 531 U.S. 98, 120 (2000)
(Rehnquist, C.J., concurring); see also Republican Party of Pa. v. Boockvar, 592 U.S. __, slip op. 1 (2020) (Statement of Alito, J.). This does not mean that state-court interpretations of state law are entitled to no deference. But at some point, a purported  interpretation" becomes "not a construction" of the relevant text, "but a rewriting of it." State Bd. of Equalization of Cal. v. Young's Market Co., 299 U.S. 59, 62 (1936).
The Electors Clause prohibits such rewritings in the context of presidential elections.

Precisely because Ohio holds this view about the meaning of the Electors Clause, it cannot support Texas's plea for relief. Texas seeks a "remand to the State legislatures to allocate electors in a manner consistent with the Constitution." Br. in Support of Motion for Leave to File 16. Such an order would violate, not honor, the Electors Clause. Federal courts, just like state courts, lack authority to change the legislatively chosen method for appointing presidential electors. And so federal courts, just like state courts, lack authority to order legislatures to appoint electors without regard to the results of an already-completed election.

What is more, the relief that Texas seeks would undermine a foundational premise of our federalist system: the idea that the States are sovereigns, free to govern themselves. The federal government has only those powers that the Constitution gives to it. And
nothing in the Constitution empowers courts to issue orders affirmatively directing the States how to exercise their constitutional authority. . . .

Imagine that! A state AG filing that actually shows an understanding of federalism!

The brief makes another important point:

Although Ohio does not endorse Texas's proposed relief, it does endorse its call for a ruling on the meaning of the Electors Clause. More precisely, Ohio urges the Court to decide, at the earliest available opportunity, whether state courts and state executive actors violate the Electors Clause when they change the rules by which presidential elections are run.

Of course, this issue need not be resolved in this case. There are multiple pending cases from Pennsylvania that raise this issue more cleanly (see, e.g., here, here, and here). These other cases would provide the Court with the opportunity to clarify the law so as to help avoid these sorts of controversies in future years. While some might argue the Pennsylvania case are moot, because they cannot affect the selection of Pennsylvania's electors, let along the result of the presidential election, I would argue that the current controversy shows they raise questions capable of repetition, yet evading review.