Election 2020

Pennsylvania, Georgia, Michigan, and Wisconsin Defend Their Authority to Select Presidential Electors

The four defendant states in Texas v. Pennsylvania file their briefs in opposition.

|

A rash of additional briefs have been submitted in Texas v. Pennsylvania, the audacious effort by Texas Attorney General Ken Paxton to prevent Georgia, Pennsylvania, Michigan and Wisconsin from selecting presidential electors based upon the results of the November election. All of the briefs are available on the Supreme Court's website here.

In two prior posts (here and here) I discussed some of the briefs filed in support and in opposition to the Texas filing. Although quite a few interesting and noteworthy filings were submitted this afternoon (and not always noteworthy in a good way), in this brief post I want to highlight a few portions from the briefs of the defendant states.

The briefs from the four defendant states raise a wide range of objections to the Texas filing. These include jurisdictional arguments, such as that Texas lacks standing and that the case raises a nonjusticiable political question, prudential arguments such as laches, and substantive arguments rejecting Texas's claims that any constitutional violation occurred. The briefs also point out how many of the claims Texas makes about specific events in each of their states have been rejected by state and federal courts, and are often based upon faulty factual claims.

On the question of the Court's jurisdiction, the Pennsylvania filing makes a powerful argument that Texas lacks Article III standing to bring its claims.

First, Texas cannot establish it suffered an injury in fact. An injury in fact requires a plaintiff to show the "invasion of a legally protected interest"; that the injury is both "concrete and particularized"; and that the injury is "actual or imminent, not conjectural or hypothetical." Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016). According to Texas, the alleged violations of Pennsylvania's Election Code undermined the authority granted to the Pennsylvania General Assembly under the Electors Clause. Motion at 3, 10-11, 13-15. But as the text of the Electors Clause itself makes clear, the injury caused by the alleged usurpation of the General Assembly's constitutional authority belongs to that institution. AIRC, 576 U.S. at 800 (legislature claimed that it was stripped of its responsibility for redistricting vested in it by the Elections Clause). The State of Texas is not the Pennsylvania General Assembly. See Virginia House of Delegates v. Bethune-Hill, __ U.S. __, 139 S.Ct. 1945, 1953 (2019) (noting the "mismatch between the body seeking to litigate [the Virginia House of Delegates] and the body to which the relevant constitutional provision allegedly assigned exclusive redistricting authority [the General Assembly]").

Second, Texas's claimed injury is not fairly traceable to a violation of the Electors Clause. As discussed above, each of Texas's allegations of violations of Pennsylvania law has been rejected by state and federal courts.

Third, Texas fares no better in relying on parens patriae for standing. It is settled law that "a State has standing to sue only when its sovereign or quasi-sovereign interests are implicated and it is not merely litigating as a volunteer the personal claims of its citizens." Pennsylvania, 426 U.S. at 665. The state, thus, must "articulate an interest apart from the interests of particular private parties." Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Baez, 458 U.S. 592, 607 (1982). In other words, "the State must be more than a nominal party." Ibid. That, however, is exactly what Texas is here. Texas seeks to "assert parens patriae standing for [its] citizens who are Presidential Electors." Motion at 15. Even if, as Texas claims, the presidential electors its citizens have selected suffered a purported injury akin to the personal injury allegedly sustained by the 20-legislator bloc in Coleman v. Miller, 307 U.S. 433, 438 (1939), which they did not, that does not somehow metastasize into a claim by the state rather than those presidential electors. The 20-person bloc of legislatures in Coleman sued in their own right without the involvement of the State of Kansas. Ibid. Texas has no sovereign or quasi-sovereign interest at stake. It is a nominal party, at best.

The Georgia brief, in particular, also makes clear how radical and wrong-headed AG Paxton's arguments are. Among other things, the Georgia brief highlights that if Texas's arguments were accepted, it would mean that state legislatures lack the power to authorize state agencies, such as a state Secretary of State, to issue election regulations or decisions regarding election administration, and state legislatures could not authorize state courts to adjudicate election disputes. The Georgia brief also explains how some of the factual claims Texas and others make are simply wrong.

Were the Texas theory to be accepted, any administrative or executive action taken to change election administration rules would render the state's selection of electors unlawful, even if such actions were authorized under state law. Such a rule would not only invalidate Georgia's selection of presidential electors. It would invalidate the selection of presidential electors in Texas too, given some of the actions Governor Abbott took this past fall. It is a radical argument that would make a mockery of Article II's delegation of power to state legislatures and upend core elements of our federal system. It is simply remarkable that any state official who purports to be a constitutional conservative could embrace such a claim. (And don't even get me started on the brief filed by members of Congress.)

The entire Georgia brief is quite good. The introduction gives a sense of the argument.

"None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution's design to leave the selection of the President to the people, through their legislatures, and to the political sphere." Bush v. Gore, 531 U.S. 98, 111 (2000) (per curiam). That is as it should be, given that the Constitution vests each State with the power to "appoint, in such manner as the Legislature thereof may direct, a number of electors." U.S. Const. art. II, §1, cl. 2. And that reality requires that Texas's motions challenging the results of the presidential election in Georgia be denied.

Contrary to Texas's argument, Georgia has exercised its powers under the Electors Clause. Georgia's legislature enacted laws governing elections and election disputes, and the State and its officers have implemented and followed those laws. To ensure the accuracy of the results of that process, it has completed three total counts of the vote for its presidential electors, including a historic 100 percent manual recount—all in accordance with state law. It has, consistent with its authority under 3 U.S.C. § 5, authorized its courts to resolve election disputes. See Bush, 531 U.S. at 112 (Rehnquist, C.J., concurring, with Scalia, J. and Thomas, J.) ("In most cases, comity and respect for federalism compel [this Court] to defer to the decisions of state courts on issues of state law"—a practice that "reflects [the Court's] understanding that the decisions of state courts are definitive pronouncements of the will of the States as sovereigns."). It has defended its election process in multiple lawsuits in the State. And the disputes that challengers have filed in the State have all resolved in Georgia's favor.

Texas nevertheless asks this Court to transfer Georgia's electoral powers to the federal judiciary. Respect for federalism and the constitutional design prohibits that transfer of power, but this Court should never even reach that issue because the Court's rules governing its original jurisdiction, constitutional limitations on standing, and principles of federalism all preclude the exercise of this Court's original jurisdiction over Texas's belated action.

The defendant states' briefs collectively make a powerful case against Texas. If any justices on the Court wish to address the underlying Electors Clause issue, they still have the opportunity to consider those claims in the pending Pennsylvania cases. Those petitions provide cleaner vehicles and do not implicate the outcome of this election. Whether the Court decides to hear those cases or not, it should put a quick end to this vexatious litigation.

NEXT: Supreme Court Issues Unanimous Decision in Important Religious Freedom Case

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Is there a limit to how many misstatements of fact are allowed before a lawyer faces some sort of discipline?

    1. Heh, no.

      There is a requirement of candor to the tribunal (fancy-speak for you have to honest to the judge). One “mistatement of fact” is enough to get you into hot water, in theory.

      In practice, it’s really, really, really, almost impossibly hard to get into trouble for being a lying sack of shinola to a judge. Maybe get a slap on the wrist in that case. If you want to get into serious trouble, just accidentally mess up a trust account. The bar will come down on you like a sack of bricks. 🙂

      1. Trial judges don’t want to deal with the attorney they’d like to sanction ever again so they’ll toss a case and send them on their way hoping the disciplinary system will catch up to them. Or they will see this person regularly and don’t think they’re usually bad so they won’t want to sanction them and hope that the disciplinary system catches up to them if they truly are bad.

        But then the disciplinary system coddles lawyers and like you said only goes after co-mingling/IOLTA issues. Although I would add that they also hate law students, and people who lie to the disciplinary system.

        1. While I doubt Texas’s AG has signing authority over an IOLTA account, I also suspect that, if he had, Paxton would be paying for private jet flights out of it within a week.

          So who can we talk to in Texas about getting one set up?

      2. This is something I would hope that lawyers of all political persuasions could get behind. Not even disbarment, but at least some sort of consequences for, and acknowledgment of, dishonesty.

    2. Is there a limit to how many misstatements of fact are allowed before a lawyer faces some sort of discipline?

      We’ll find out!

  2. “Although quite a few interesting and noteworthy filings were submitted this afternoon (and not always noteworthy in a good way)”

    That is an understatment! This is really bringing out the crazies.

    Personal ranking of the responses:
    Penn > Georgia (but it’s close, and I could go either way) > Wisconsin > Michigan.

    Really, though, Michigan’s response is just not very good. At best, it’s perfectly cromulent.

    I guess their attorneys are like their football team; O-V-E-R-R-A-T-E-D.

    🙂

  3. The subtitle says “fur”, but I’m guessing you meant “four”, unless you were referring (refurring?) to it being a hairy situation!

    1. I just figured furries were the next installment of 2020itis.

    2. At least he didn’t mis-spell “Louisiana” like the Texas AG’s filing did.

      1. Texans think Louisiana is like Mexico…Cajun Mexico where people speak worse English than Mexico (Cancun and Cabo). 😉

  4. Another interesting thing is that the Trumpistas have now declared their previous claims to having massive evidence of fraud have been rendered “inoperative.”

    Wonder if they are going to offer refunds to the marks.

    1. Those marks don’t want refunds. They are gullible, bigoted, character-deprived losers.

      Similar to a number of conservative law professors, it appears. (Prof. Adler has distinguished himself from the losers — it may be inevitable that he follows Prof. Kerr in diminishing his association with this blog.)

  5. Kudos to Pennsylvania for a lucid discussion of Texas´s woeful lack of Article III standing.

  6. Not to quibble with a post I agree with, but is laches really a prudential argument? I always thought it was an equitable defense. Or is it merely prudential at this stage given the procedural posture of opposing a motion for leave to file a bill of complaint?

    1. Hey, worked for Brett v. Martin appeal.

  7. Re: standing

    IF PA violated its legislature’s wishes and acted in conflict of the state legislature’s election dictates (assume it occured here, which would defintionally mean the PA Sp.Crt. allowed this to occur even potentially against the protestations of the legislature)

    AND the PA legislature refused, for any number of potential reasons, to challenge in their own court system

    AND the result was a slate of otherwise illegitimate electors

    THEN wouldn’t other states have standing in that the Electoral College vote would thereby contain fraudulent votes and would undermine the legitimacy of that vote held among the states?

    If not… then there is zero recourse. No one else would have standing at any level and there would be no avenue by which ANY party could seek to stop a fraudulent election at that point.

    I’m not saying that happened here… just exploring the idea that the defendant views on standing in this case closed all of society off of any path to justice.

    Our current operation of standing serves us well I believe. But when held like a Holy Edict seems to preemptively prohibit paths to actual justice which just seems at odds with the idea that courts exist, in part, to seek and uphold justice.

    1. Courts are loath to issue advisory opinions. Standing rules are necessary to the case or controversy requirements of Article III.

      1. I get that… but still doesn’t address the main point that issuing advisory opinions may be better than closing off paths to just outcomes.

        An example… let us say a law banning disfavored speech is passed. I have never expressed speech that would now be banned. I do not plan on doing so. As such, I never come in conflict with that law. But I object to it based on principles of free speech, expression, and as a defense of my rights.

        To reject my claim based on standing is to create a Schroedinger’s Right. I don’t have a right to free speech until it is discovered by an attempted violation by law. I suggest that the violation of my right is not defendant on my choice to exercise it or not, because its existence is not predicated on me exercising it or not. Thus the violation occurs even if I do not, in the particular, come in conflict with the law.

        We see cases all the time that are essentially “staged” (and I don’t mean that negatively) in order to get the question before a judge to correct an injustice.

        1. There are plenty of, say, Jim Crow, laws still physically in the books but they are no longer enforced.

          Passing a law is one thing but enforcement is another.

    2. If the legislature does not challenge or try to correct via legislation, does that not confer consent to those changes?

      From what I understand, the changes to voting procedure in PA were conducted in conjunction with both the legislature and the executive. Some of the solutions they came up with didn’t work well (as more than a few predicted), such as not starting to count mail-in ballots until election day. But how does that change in procedure directly affect Texas?

      1. “From what I understand, the changes to voting procedure in PA were conducted in conjunction with both the legislature and the executive.”

        Some were, some were not.

        Texas has constructed an argument where, in theory, they should win in Georgia regardless of the whole “plenary power” question. Some of the changes done by the judiciary and executive were plainly contrary to statutory law, but the legislature also made changes to statutes which were contrary to the PA state constitution. If the power is plenary, they should win on the former grounds, and lose on the latter grounds. If the power isn’t plenary, the other way around.

        I think they lose anyway because the Court does not want to be involved, and basically doesn’t CARE if these states violated their election laws, or anyway, doesn’t care enough to take the heat for upsetting the apple cart in four different states.

        If, as in 2000, it had been one state and razor close, they might have let legal issues decide. Here, the countervailing political issues are just too massive for them to ignore. Maybe Thomas will care, he doesn’t give a shit what anybody else thinks. The rest of them are all politicians to some extent.

        Conspicuously, the opposition briefs were filed by the state AG’s, who, not incidentally, were parties to the decision to violate the laws the legislatures had enacted. Do any of them have the support of their state legislatures in this? I don’t know, but it might be relevant.

        1. “Conspicuously, the opposition briefs were filed by the state AG’s, who, not incidentally, were parties to the decision to violate the laws the legislatures had enacted.”

          That’s accepting that they violated any laws, which also hasn’t been established. Under this assumption, Texas also “violated the law”. They should have to throw out their election results too.

          1. No, it has absolutely been established. It’s not even a near thing: The law states one deadline, the judge says another. That’s your violation, right there, because the legislature originates the law, not the judge.

            1. So your theory is that state constitutions are inoperative and that the legislature can just ignore them when it comes to matters of federal elections?

              1. No, my theory is that you can’t use a vague, hortatory clause of a state constitution, “Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”, to overcome a clear and admittedly constitutional statute. Here’s the opinion in which the state supreme court did exactly that.

                They start out, “When presented with matters of statutory construction, this Court is guided by Pennsylvania’s Statutory Construction Act, 1 Pa.C.S. § 1501-1991. Under this Act, “the
                object of all statutory construction is to ascertain and effectuate the General Assembly’s intention.” Sternlicht v. Sternlicht, 876 A.2d 904, 909 (Pa. 2005) (citing 1 Pa.C.S. § 1921(a) (“The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly”)). When the words of a statute are clear and unambiguous, “the letter of it is not to be disregarded under the pretext of pursuing its spirit.”

                They then proceeded to do exactly that, saying, “Finally, this Court has previously observed that the purpose and objective of the
                Election Code, which contains Act 77, is “[t]o obtain freedom of choice, a fair election and an honest election return[.]” Perles v. Hoffman, 213 A.2d 781, 783 (Pa. 1965). To that end, the Election Code should be liberally construed so as not to deprive, inter alia,
                electors of their right to elect a candidate of their choice.”

                Sure sounds like an appeal to the spirit of the law to me.

                The state Court admits the law is NOT ambiguous: “Unlike other provisions of Act 77 currently before this Court, we are not asked to interpret the statutory language establishing the received-by deadline for mail-in ballots. Indeed, there is no ambiguity regarding the deadline set by the General Assembly:”

                The state Court admits the law is clearly constitutional: “Moreover, we are not asked to declare the language facially unconstitutional as there is nothing constitutionally infirm about a deadline of 8:00 p.m. on Election Day for the receipt of ballots.”

                The state Court admits striking this balance is the legislature’s job: “Moreover, we recognize that the determination of that balance is fully enshrined within the authority granted to the Legislature under the United States and Pennsylvania Constitutions.”

                And then they decide to take that determination away from the legislature. And blow off the anti-severability clause which they had earlier acknowledged demanded that the entire mail in balloting law be void if any part of it was not upheld. Don’t even regard it as worth explaining why they weren’t going to enforce it.

                1. Are the repetition of the same (false) claims about what the Pennsylvania Supreme Court did like cereal box tops to you; that if you collect enough of them you’ll get some kind of super-secret spy decoder ring?

                  Let’s just admit what you’re really trying to do here. You’re not trying to protect an election, you’re trying to disenfranchise millions of voters. You want to overturn a valid election, an election with no credible evidence of fraud. You’re really on the wrong side of history here, fighting for a result that is anti-democratic, that disenfranchises millions of voters, and damages the very idea of America.

                  1. So, if 100,000 Trump voters showed up at polls today and demanded to be allowed to vote for Trump – you’d defend their right to do so? You wouldn’t want to disenfranchise anyone, right?

                    1. Do you not see the difference between voting while relying on the allowance of mail in voting rules properly adopted (and properly held valid) and voting after the results have been certified? Details like that are a little to tough for you to grasp?

                2. Ah, so now your theory is that you and Texas get to decide what the Pennsylvania constitution means and how to apply it, not the Pennsylvania courts?

                  Obviously you disagree with their decision or judicial philosophy, which is your prerogative. But the Pennsylvania courts are making decisions based on their understanding of the state constitution. Eventually in every legal dispute there is an ultimate decision maker beyond which no appeal is possible. Sometimes the Supreme Court of the United States makes decisions that I disagree with, and sometimes they even make decisions about the extent of their own authority. That doesn’t mean that when they make a decision I don’t like, that Canada or China or Cameroon ought to be able to intervene and tell them that they’re doing it wrong.

                3. No, my theory is that you can’t use a vague, hortatory clause of a state constitution, “Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”, to overcome a clear and admittedly constitutional statute.

                  Yes, but here’s the thing: nobody cares what Brett Bellmore’s theory is. You are not a good lawyer. You are not even a bad lawyer. You are a probably-on-the-spectrum engineer acting as an Internet commenter pundit.

                  The state Court admits the law is clearly constitutional: “Moreover, we are not asked to declare the language facially unconstitutional as there is nothing constitutionally infirm about a deadline of 8:00 p.m. on Election Day for the receipt of ballots.”

                  Once again, Mr. Dunning-Kruger: you don’t understand law. You have gotten this completely wrong. The state court does not “admit” any such thing here. Do you see the word “facially” in there?

              2. So your theory is that state constitutions are inoperative and that the legislature can just ignore them when it comes to matters of federal elections?

                An especially bad theory in the case of Pennsylvania, which eliminated the constitutional convention in 1838 so that all constitutional amendments since have originated in the state legislature, including the one

                Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.

                that the Penn. Supreme Court relied on to ovverride the statutory deadline.

            2. “No, it has absolutely been established. It’s not even a near thing: “The law states one deadline, the judge says another. That’s your violation, right there, because the legislature originates the law, not the judge.”

              But why did the judge extend the deadline? Because the set deadline would not give officials adequate time to count the votes, interfering with a citizen’s right to have their duly cast vote counted. If the Constitution matters, and Congress and Legislatures can’t pass laws that take away the rights of the people, the right to have a legally cast vote must supersede an unworkable timeline.

              In the distorted views being projected here, no one could sue to redress bad lawmaking, because the legislature is always right.

              1. I don’t care why the judge decided to order the law violated. I care that the judge decided to order the law violated.

                The court could have struck down the law if they’d found it unconstitutional, absolutely. The law in question had an explicit, and as the court admitted, binding, anti-severability clause: In the event any part of the law wasn’t upheld, the entire law became void.

                After citing it, the court just went ahead and ignored it.

                Oh, and your reasoning is crazy: Extending the deadline for receiving ballots didn’t give them more time to count them, it gave them LESS time.

                1. “I don’t care why the judge decided to order the law violated. I care that the judge decided to order the law violated.”

                  And therein lies the problem. In your world, if the legislature wrote a law saying no one could vote at all. They and they alone will chose the Reps and Senators… That’s it. There is no legal recourse. Legislature is GOD.

        2. “It is simply remarkable that any state official who purports to be a constitutional conservative could embrace such a claim. ”

          As a former Conservative, I wholeheartedly agree with this assessment.

        3. Someone seems to want a national election run by the federal government…the states can’t be trusted to run the Electoral College, right??

          1. Only when Trump loses, and only after they know that’s the result.

            There is nothing serious about this lawsuit or the Trumpers claiming otherwise.

          2. I’m fine with you still being a conservative.

            But the present GOP is trying to overthrow the Constitution, which is hardly conservative.

        4. the legislature also made changes to statutes which were contrary to the PA state constitution.

          1. Like what?

          2. How would the Supreme Court have the authority to second guess the state on that point?

          1. 1. The state constitution: “The Legislature shall, by general law, provide a manner in which, and the time and place at which, qualified electors who may, on the occurrence of any election, be absent from the municipality of their residence, because their duties, occupation or business require them to be elsewhere or who, on the occurrence of any election, are unable to attend at their proper polling places because of illness or physical disability or who will not attend a polling place because of the observance of a religious holiday or who cannot vote because of election day duties, in the case of a county employee, may vote, and for the return and canvass of their votes in the election district in which they respectively reside.” It specifies all the reasons mail in voting may be done. The new state law permitted mail in voting without excuse, the state constitution requires that it only happen with one of the listed excuses.

            2. Because, as they have previously ruled, the federal constitution gives the power to decide how electors are chosen directly to the state legislature, not the state as a whole. In this area, the legislature is exercising a federal power, not state, and the federal courts are entitled to rule on whether the rest of the state government is upholding the rules the legislature enacted.

            1. The passage you quoted says that the legislature has to provide absentee voting accommodations for those groups. What’s the language that you think precludes the legislature from making accommodations for others at its discretion?

    3. There’s a bunch of parties that potentially have standing. Certainly the legislature is one (and the one that you would presume would be most interested in litigating if they thought that the other branches were operating contrary to their wishes). Political candidates potentially have standing as well, and as Professor Adler notes there’s a bunch of cases brought by candidates that are more appropriate vehicles to address a lot of these claims. Lastly, depending on the change to voting procedures, voters could bring suit.

      In any case, just because actors that actually have standing choose not to sue doesn’t magically create standing for some other party.

    4. The path to justice in your hypothetical is for the losing candidate to file suit.

  8. I’m happy to see Georgia, a state with a Republican Governor, a Republican AG and Republican majorities in both houses of the legislature take such a firm stand.

    Hopefully some Democrats will recognize that and give them some credit.

    1. “Hopefully some Democrats will recognize that and give them some credit.”

      I would be inclined to but — they voted for this. A vote for Republican is a vote for this and those Republican worthies without a doubt voted Republican. Don’t bother arguing that there was no way they could have known before the election. There was plenty of indication that this would happen.

      How they must miss Scalia. He would have found a way to give this lawsuit some sort of push. Maybe even over the finish line.

      1. “How they must miss Scalia. He would have found a way to give this lawsuit some sort of push. Maybe even over the finish line.”

        I doubt it. I am not a fan of the late justice, but I must admit that, as a rule, he did not suffer fools gladly — even conservative fools.

      2. Profoundly ignorant comment.

    2. Fair point. I know for sure that MSNBC has given them a TON of credit, on many different days, on many different daytime and evening shows. I rarely watch CNN, but on the two days I did watch, both hosts credited the Ga officials.

      When I talk about the election with my Democrat friends, their response seems to be (a) We were *not* happy with voter suppression before the Abrams election, and (b) Notwithstanding (a), we are incredibly impressed and pleasantly surprised at the integrity from Ga officials post-election this year.

      This seems to be a reasonably nuanced and fair assessment.

      So, in my assuredly-small universe; the praise has been given, and just about universally. (You did not ask, but my Republican friends have also been effusive in their praise of these particular Rep. officials. Have not yet asked my 3 friends who are Trump supporters about this.)

      1. MSNBC has several Republicans…they are just NeverTrumpers.

    3. In her acknowledgement-but-not-concession of the 2016 gubernatorial contest, Stacy Abrams seems almost prophetic:

      Because Georgia still has a decision to make about who will we be in the next election. And the one after that. And the one after that. So we have used this election and its aftermath to diagnose what has been broken in our process…

      And I will pray for the success of Brian Kemp, that he will indeed be a leader for all Georgians. That he will pledge to fight for the rights of those who disagree with him — and keep his promises. That he will refuse the call of those who see how close this election was. Because we know that some propose to make voting even harder. They see voter engagement in communities of color and cry fraud or lie about the cost of democracy to justify closing more polling places. I pray he will reject this vicious and tired response — in favor of preserving what is left of our state’s reputation for equality and civil rights

      …and in a combination of irony and karma, some of that actually seems, post election, to be happening. Though forced into it (originally, by sticking with his own choice of appointed Senator versus accepting Trump’s choice), Kemp’s been mostly doing the right thing in defense of Georgia’s 2020 updated and (mostly) rationalized voting processes.

      Who’d a thunk it?

      1. There wasn’t any voter suppression before the 2018 election. Polling places were closed because of disuse and almost all were in largely white rural areas. Voter rolls were purged per state law, with a very quick and easy path to reinstatement. Oh, and voter id is not suppression.

    4. I am happy to give them credit.

      Kemp, in particular, has been a surprise.

    5. Georgia state officials definitely deserve credit for standing up to this nonsense.

      Even though it’s a bit on the sidelines, Republican officials in Ohio deserve credit as well. Their Secretary of State was vocal before and after the election defending the integrity of the electoral process, and now their AG has written a strong brief on the side of sanity in this lawsuit as well.

    6. Some people would call them RINOs though.

    7. I happily credit the GA Republican leadership for upholding the rule of law and votes of the people. It is honorable to defend democracy even when your side loses. Full marks.

      Instead of bending themselves over the Resolute Desk and spreading their cheeks like much of the current GOP.

  9. “Were the Texas theory to be accepted, any administrative or executive action taken to change election administration rules would render the state’s selection of electors unlawful, even if such actions were authorized under state law.”

    Well, as long as “state law” means act of the legislature, then — as that’s what the Constitution mandates — it would NOT have any effect. The issue is when someone other than the legislature changes the rules that is the problem.

    1. But the state legislature, many state legislatures, most all state legislatures, gave the authority to their election officials.

      How is this any different than Congress giving a pass on their sole Constitutional power to declare war and kick it to the executive branch over the last 70 years to decide?

  10. Is it time for America’s modern, educated, reasoning states to sue the backwater, Republican-run states for bigotry and rampant freeloading?

  11. “The fur defendant states . . .”

    What’s a fur defendant? A defendant who shows up in court wearing a mink?

    1. But it’s OK, ‘cuz the fur Defendants are challenging “Additional Facts Facts” (see PDF page 7 of https://www.supremecourt.gov/DocketPDF/22/22O155/163234/20201209155327055_No.%2022O155%20Original%20Motion%20to%20Intervene.pdf ).

      Are the election results are as accurate as the litigants’ spelling? Both are partially automated systems.

  12. Has there been or is there going to be any filings in opposition to allowing Trump to enter the case as an individual plaintiff? Even with all of the absurdity of this litigation, the idea that a presidential candidate has standing or the ability to petition or file with the Court as original jurisdiction seems so insane that one is amazed there is even a single attorney in the nation who would undertake such representation.

    1. Then you’ve never followed John Eastman, Esq, of Chapman University’s Dale E. Fowler School of Law!

      Though, as others have observed, he may have had a tiny bit of sub rosa assistance from the State of Texas AG office in the drafting of his filing.

    2. I would observe that the court has not directed or invited responses to Trump´s motion to intervene. That may not portend well for Trump, given the tight timetable.

    3. mmmm, I am far from an expert on this, but they did seem to cite some cases to the effect that an individual can join a state v. state litigation. I did not track back and read the cases (or shepardize them, if that is even still a thing), but I can believe that original jurisdiction is not spoiled by lack of complete diversity the way diversity jurisdiction is.

      1. Seems more like supplemental jurisdiction?

  13. I would submit that the Arizona Independent Redistricting Commission case should provide controlling precedent by the Court’s interpretation of “legislature” in the Election Clauses to include the state’s constitutional legislative process, including initiative/referendum by the voters, veto/enforcement/implementation by the executive and interpretation/review by the state’s judiciary. If I were a Supreme, my vote would be to grant the motion to file, assume standing without deciding, and apply the precedent to decide the merits in favor of the respondent states (judgment on the pleadings on the Court’s own motion).

    1. Courts cannot assume standing without deciding. Standing is a component of Article III jurisdiction, and must be considered sua sponte if not raised by the parties.

    2. This tells me you are not a lawyer. A Federal court cannot assume standing. Sometimes they make up BS ways to find standing, but they cannot explicitly assume it.

      1. I’m most assuredly not a lawyer. I’m an armchair SCOTUS Kremlinologist who desperately wants them to reach the merits without encouraging this kind of fuckery in the future. Perhaps one Justice could write a concurring opinion which the others join except as to the part which finds standing (is there one that would?). This seems to be the kind of case that cries out for an advisory opinion couched as a dissent from denial of cert that lays to rest the substantive constitutional argument.

        1. As Professor Adler notes, there’s other cases that raise similar issues where standing is less problematic. If they want to address the Electors Clause issues, they can do so without opening the Pandora’s Box of recognizing standing for Texas in this case.

        2. Just checked the Pennsylvania response – Arizona Independent Redistricting Commission cited four times.

  14. If I understand the basic premise here, states acted unconstitutionally because officials other than the state legislature changed election laws to accommodate the the unique situation cause by the pandemic. But don’t all states have various departments outside of the legislature set up to administer the act of voting, which includes setting rules for the process?

    And what about county officials? They often make changes to fit the needs of their constituents.

    How is this any different than Congress giving a pass on their sole Constitutional power to declare war and kick it to the executive branch over the last 70 years to decide?

    1. Both situations illustrate the big drawback of standing doctrine as it currently exists. It denies the principle, which ought to be absolute, that the law provides a remedy for every injury.

      1. The three elements of standing are:

        Injury-in-fact
        Traceability
        Redressability

        So I don’t see how it denies the principle. Also that principle isn’t absolute and never has been. Why on earth would the law provide a remedy for EVERY injury? There’s no remedy if I stub my toe. No remedy for the Cleveland Browns many failed seasons. No remedy for cancelling Firefly…

        1. The remedy for cancelled Firefly is cancelled Firefly.

    2. It’s different because the legislature didn’t delegate to the various departments the right to violate its statutes.

      1. You know who decides whether something violates a statute? Hint: not Brett Bellmore.

  15. I notice this piece didn’t even mention that 16 other states have joined Texas as plaintiffs in this case. Or that SCOTUS has voted to hear it, 6-3. So at least that many state AGs don’t think it is “far-fetched.”

    1. That was brought up in another post by Adler. But only six states have. The others filed amicus briefs.

    2. What is your factual basis for claiming that the court has voted 6-3 to hear the case?

      1. The website of the court, linked in Professor Adler´s post, includes no order granting leave for filing of the bill of complaint.

        1. And even if it had: you’d never know the vote on that particular motion.

    3. 1. SCOTUS has not yet acted on this case by granting leave to file the bill of complaint.
      2. Even if they had, there would be no way for you to know the vote because dissents from granting review are not recorded.

      https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/22o155.html

    4. A bald-faced lie is not really a great way to make your entry, but you guys don’t have a track record of being very bright.

  16. Even if two senior Associate Justices prevail on this whole “let the states fight it out on their own” thing, and it proves possible not to hear the case, I don’t know if vehicle arguments would be valid. This isn’t Cert jurisdiction — you’re not trying to fix a problem in the law. It’s not whether there’s a better case to decide the principle, it’s whether the case, such as it is, sufficiently states a claim at this exalted level.

    Mr. D.

  17. Slightly off at a tangent on this business of letting States get on with their own business as regards elections, I found myself wondering about the Motor Voter Law.

    As I understand it, it is properly founded on the Elections Clause which permits Congress to make or modify regulations for Congressional elections. And broadly it requires States to do various things to facilitate voter registration, eg registering people renewing drivers licenses etc. So far so good.

    But I got puzzled about commandeering. IIRC the Obamacare case led to SCOTUS nixing some of the Medicaid expansion on the grounds that commandeering States is not allowed, even though Congress has the power to make law in the Medicaid area. So this no commandeering business seems to kick in as a limitation, even when Congress does have the Constitutional power to legislate.

    So how does the Motor Voter law square this circle ?

    Elections Clause – check
    Commandeering – ?

    1. That’s actually pretty easy: Commandeering applies where there ISN’T constitutional text authorizing Congress to make the rules. The elections clause means commandeering doesn’t apply in this particular context.

      1. But what about Medicaid ? If there’s no Constitutional text authorising Congress to make the rules about Medicaid, then Congress isn’t authorised to make rules about Medicaid in the first place, so it shouldn’t ever come down to commandeeering.

        So the mystery is – how do we arrive at a class of objects :

        (a) for which the Constitution does authorise Congress to make the rules, but
        (b) which nevertheless may not commandeer States

        And how do we identify the members of that class ?

        1. Medicaid is an option for states and Congress has not/cannot mandate they participate (although since 1982 all states have participated in Medicaid [Wiki]).

          States also opted out of the ACA (Obama Care), which expanded Medicaid.

          So….no commandeering.

  18. PA has joined TX against PA. Have not seen their filing

    1. I strongly suspect you are mistaken. Have you read the Commonwealth of Pennsylvania´s response in opposition to the relief requested by Texas?

        1. Assuming that’s legit (I have yet to find it) that’s not the whole House. That’s two politicians.

          1. You’re trying to reason with clingers?

            1. Not reasoning. Just pointing out a problem.

              1. You just become part of the Deep State conspiracy, buddy.

          2. That’s the House leadership, which is normally taken to represent the House. But I take your point, I was just demonstrating that he didn’t pull the claim out of his ass.

            I’d prefer better sources myself, but under present circumstances that’s often not an option, with most MSM outlets actively censoring election related coverage.

            Welcome to the American Soviet, where the media, instead of being state run, are run for the benefit of a particular party regardless of whether it’s in power at the moment.

          3. Perhaps he is mistaken in that it is 106 members of the House of Reps (federal) that signed on to an amicus brief supporting Trump, not PA Reps.

  19. If I were representing any of the four defendant states, I would be thoroughly tempted to file a brief that said, in its entirety, “the petition should be dismissed as frivolous.”

    I would probably resist the temptation, but I would be tempted.

    1. Heh, I reacted similarly .. but more like “this is bool and sheet. And you know it.”

    2. No, instead I would look for any voting issues there were in Texas (et al), and file a brief saying all THEIR votes and electors should be cancelled.

      Goose / Gander thing….

  20. The US will become a permanent one party state if the Democrat Party is allowed to cheat and to steal this election by the Supreme Court.

    1. Seriously?

      Have you not looked at all at the down ballot races? Yep the Dems are so stupid they concocted this fantastic, fool proof, every-court-accepted plan to steal the election but didn’t bother to steal any other races. I guess that North Korea ship that landed in Maine with millions of fake ballots forgot to mark them for other Dems.

      1. As a liberal, it is quite possible the Ds would be that stupid.

      2. Yeah, the did badly down the ballot.

        One explanation for that is that, since those states got rid of the straight ticket option, manufacturing votes for more offices takes more labor.

        Another would be that they managed to make so many people who didn’t really like Democrats hate Trump, that millions of people split their tickets, voted for Biden and Republicans down ticket.

        I’d credit the latter, personally, but that doesn’t excuse treating election laws like mere suggestions. And, yes, if that’s established to be OK, it will only get worse come the next election.

        1. It’s been getting worse for you guys for the past 200+ years.

        2. since those states got rid of the straight ticket option, manufacturing votes for more offices takes more labor.

          Are you still pushing the discredited “Biden votes only” theory?

          Do facts mean anything to you?

      3. Biden was probably doing better than the down-ballot folks, which is likely because there are lots of right-leaning independents and Republicans who don’t like Trump but also don’t want the menu of crazy that the libs are promising. If so then if you assume election fraud occurred there would have to be an outsized vote total for Biden to get the down-ballots elected. No one would believe that Biden won Georgia by 200,000 votes for example.

    2. Gosh, that sounds pretty bad.

      You’d better get out while you still can.

    3. Did you miss the part where all the people trying to get Trump re-installed as President don’t have actual evidence that Trump won any of the four closest states (AZ, GA, MI, PA)?

      Did you miss the part where Republican governors and Secretaries of State have said Trump’s and his lawyers’ claims regarding their respective states are bunk?

      What part of the American system do you hate so much that you want to overturn the results of an election based on your gut feeling that something must be wrong because your candidate lost?

      Bonus: Did you miss the part where Biden won the popular vote by about 7 million votes?

      The only two dangers I see of America becoming a one-party state are:

      1. If the party that continually gets the smaller part of the popular vote (7 of the last 8) manages to get millions of valid votes thrown out so that their guy wins despite losing, again.

      2. If that same loser party fails in the effort to install the loser but nonetheless keeps leaning more crazy, thereby shrinking the number of people who will associate with it so that, in addition to consistently losing the popular vote, they also consistently lose the electoral college and Senate campaigns.

      1. “Did you miss the part where all the people trying to get Trump re-installed as President don’t have actual evidence that Trump won any of the four closest states (AZ, GA, MI, PA)?”

        No, we didn’t, because they did produce evidence that he won at least some of those states if you only counted legal ballots.

        1. You are making stuff up, Brett.

          They did not produce evidence that he won “at least some of those states if you only counted legal ballots.”

          Even accepting the most generous (to you) interpretation of which ballots were legal, there weren’t enough “illegal” ballots in any state to change the result. Moreover, state legislation as interpreted by that state’s highest courts determines which ballots were legal. The overwhelming evidence is that Biden was selected on enough ballots considered legal under the law of each of those “contested” states to win.

          What Trump has resorted to is to ask that the Supreme Court throw out legal ballots along with allegedly illegal ballots (baby with the bath water) in order to be declared the winner of an election he didn’t win. It’s grotesque and unAmerican.

          1. To wit, even Trump’s most avid supporters argue, at best:

            “impossible to know which candidate garnered the majority of lawful votes”

            The Texas reply brief is still wrong, but not even as wrong as your nonsense that you know who Trump would have won if only “legal” ballots (according to your definition, which is different from that of the relevant state actors responsible for making that determination) were counted. Stop making arguments that only discredit you.

    4. You must have the evidence of irregularities that neither Trump nor any of his lawyers have been able to provide or even concoct. You might want to give Donnie a call to share your profound discovery and insight.

  21. isnt this akin to the non-delegation doctrine?

  22. I think Texas and supporting interveors’ argument boils down to this:

    1. Presidential elections have to be perfect (perfectly fair or done perfectly according to law, take your pick) to count.

    2. Complicated human endeavors like elections are always somewhat messy and are never perfectly fair or perfectly according to law. Especially when shit happens.

    3. Since they can’t be done perfectly, we shouldn’t have them at all.

    4. Instead, we should get our way and who we want should be the guy in charge.

    The argument here is remarkably similar to classic legal tactics used against the death penalty. You can always find some impetfection in the trial if you look hard enough.

    1. The case against the death penalty is far stronger. Many people on death row have been exonerated and released. It is very well documented that race and poverty are major factors in who gets the death penalty and who gets life in prison. There are also major discrepancies in geography, in many states only a a few counties dominate the death row cases. Also death penalty cases cost more money then just having the person spend life in prison.

      1. I think your comment is more or less a non sequitor. One doesn’t have to be very liberal to think that people who work to de facto abolish the death penalty by preventing it from ever actually being applied have a better argument than those who work to de facto anolish elections by preventing any from ever actually having their results accepted.

        But the similarity of tactics is nonetheless remarkable, and worth noting.

        The plaintiffs here aren’t claiming elections should be abolished. They are, however, behaving as if that’s their desired outcome.

        1. People who are against the death penalty are open about it, have reasonable legal arguments, and facts on their side.

          Those aghast the votes are pretending to care about democracy, are using moronic arguments, and their facts are trash.

          1. Once again, I’m not saying that the fact that people use similar tactics means they are morally equivalent. But the tactics are similar.

            If one believes that Biden ought to lose, decent people just won’t bote for Biden, then it follows that an election that results in Biden winning is inherently unjust, so there must be something wrong with it. If looks hard enough one will find something. And indeed, those who look, with this mentality, do find something wrong.

            And indeed, this is exactly the death penalty mentality. If one thinks the death penalty is inherently unjust, decent people just won’t sentence someone to death, then it follows that if a jury does sentence someone to death, something must be wrong with the trial. And if one looks, with this mentality. one inevitably finds something.

            There really is a big similarity between the two.

            I’m not sure the death penalty people are more honest. The Trump people openly believe that Biden winning is wrong, something that just doesn’t happen in any sort of semi-decent society, and believe it as strongly as the anti-death penalty people believe the death penalty is wrong amd something a smi-decent society just doesn’t do.

            The question of which is morally superior, or correct, is besides the point. I suppose both a fervant Wiccan and a fervent Catholic would both be horrified at someone pointing out that some of their rituals are quite similar, and each would insist there can be no comparison between real religion and something fake. This is analogous. The rituals here really are similar.

            1. “If one thinks the death penalty is inherently unjust, decent people just won’t sentence someone to death, then it follows that if a jury does sentence someone to death, something must be wrong with the trial. ”

              Not true.

      2. The death penalty also screw up juries in DP cases because only death penalty advocates are allowed to sit on DP juries.

        The death penalty also screws up the justice system in general as it results in what some would call a less justice oriented prosecution team and more narrow minded judges. Not so much as in years past (maybe much less), but a less than complete DP advocate is unlikely to get elected as a judge in Texas and unlikely to get elected DA or hired as ADA. Hardline death penalty advocates are different from the rest of us in many ways in addition to views on the DP. Not always, of course, but frequently ehough to be of concern, inmo.

        Back a number of years ago, reformed lawyer and successful novelist Scott Turow wrote a bunch on the DP and how it screws up many aspects of the US legal system. What I wrote above is mostly cribbed from what I remember of his writing though they were inchoate concerns that I already had at the time and are not difficult to imagine from just watching the system work.

  23. “In most cases, comity and respect for federalism compel [this Court] to defer to the decisions of state courts on issues of state law”—a practice that “reflects [the Court’s] understanding that the decisions of state courts are definitive pronouncements of the will of the States as sovereigns.”

    Wow. That’s from the Supreme Court, right? And it’s wrong. In the American system, the states are not sovereigns, any more than the federal government is a sovereign. In this nation, the people of the states, and of the United States, are jointly sovereign, not their governments.

    The distinction is never trivial, but it is especially important to keep it in mind during election seasons. Were the state governments actually sovereigns, they would enjoy limitless power to constrain voting by the people—who actually are sovereign, and thus, at least in the exercise of their sovereign constitutive power during an election, beyond the states’ constraint.

    The obligation of state governments during elections—and of the United States government too, including the Supreme Court—is to cherish, protect, and guard the peoples’ jealously-held sovereign power as they cast their votes. Except in pursuit of that goal, the various governments should have no election power at all.

    1. But the manmer of electing a president reflects the concept of state sovereignty more than most parts of the constitution. The framers gave the people no direct say in the election of a president. Instead, states themselves appoint electors in the manner prescribed by the legislature. The people get involved only if the legislature wants that. The number of electors each state gets reflects the constitution’s dual basis in both the people and the states.

      One has to thread a needle here. I don’t agree with the plaintiff states’ position, which seems to give such weight to the provision that state legislatures control appointments and to demand such perfection in adhering to legislative requirements that it effectively forces state legislatures have to appoint all the electors themselves, because if they involve anyone else at all it will inevitably be done imperfectly and get bungled.

      But one can easily dispose of that position while respecting the constitutional fact that state legislatures are in charge here, can appoint electors themselves, and can call the shots about how elections should be run.

      It should be possible to give state courts and election officials a small amount of leeway to fill in gaps and to address an emergency without either overthrowing the principal of state legislative control, or enforcing it so strictly as to make it effectively impossible for state legislatures to delegate anything even if they want to.

      Maybe it might be best not to get into rhetoric about who’s sovereign. But the reality is the constitution didn’t perfectly implement anybody’s ideas about how the government should be. It’s a compromise between different people and differnet points of view, reflecting not a perfect union but a more perfect (but still somewhat imperfect) one, run by imperfect people responding imperfectly to imperfect situations. Dual sovereignty is one of those imperfect compromises.

      I think the plaintiff states’ insistence on perfection does a great deal of mischief here. But going full-bore in the opposite direction is also going to work mischief. Any democracy is going to be imperfect. Better to accept limited and imperfect democracy, and honor the compromise that is the constitution, than to demand perfection in either direction. Legitimacy is critical here. And legitimacy comes, not from fidelity to ones own side’s ideal, but from fidelity to both sides’ compromise agreement. Both sides have to understand that forcthe Republic to endure.

      Dual sovereignty is as much part of the compromise as anything else. The people who wanted the people and not the states to be sovereign got the preamble. But they didn’t get a number of other things, including how the President gets selected.

      We live with it.

      1. “and to demand such perfection in adhering to legislative requirements that it effectively forces state legislatures have to appoint all the electors themselves, because if they involve anyone else at all it will inevitably be done imperfectly and get bungled.”

        That’s kind of a parody of the plaintiff states’ position. Some of these questions were NOT near things: The legislature says election day, the state Supreme court says several days after the election day. That’s not an imperfection. That’s just throwing out the law the legislature wrote, and imposing the judiciary’s preferences in its place.

        And I can’t get past the fact that the law in question did have an anti-severance clause, stating clearly that it had to be upheld as a whole, or struck down as a whole. The state supreme court acknowledge that, and then proceeded to ignore it. They didn’t even bother advancing an argument as to why they could ignore it!

        1. But the law wasn’t “struck down.” (Which, as Prof. Blackman points out, is not what courts do anyway.) It was ruled unconstitutional as applied. As applied. As applied. As applied. Why don’t you go learn what that means and STFU about it until you do?

  24. Closest thing this country’s had to an attempted coup, beating even the 1876 farce (which at least ended with a deal that both sides could live with). I don’t think historians will disagree.

  25. “which at least ended with a deal that both sides could live with”

    I think there were some sides down South who found the deal a bit suboptimal.

    1. True but my point is there was a winner and a loser at the end of the day and each accepted it.

  26. This is an attempt at putting together a bunch of lists of who has filed what for which cause. So here’s the rundown:

    Plaintiff / Supporting States

    Texas
    Missouri*
    Arkansas*
    Louisiana*
    Mississippi*
    South Carolina*
    Utah*
    Alabama
    Florida
    Indiana
    Kansas
    Montana
    Nebraska
    North Dakota
    Oklahoma
    South Dakota
    Tennessee
    West Virginia
    Arizona
    Alaska
    (* = Intervening States)

    Intervening Parties

    Donald J. Trump
    Michigan State Legislators
    PA State Legislators
    PA Voters
    Dr. Linda Lee Tarver
    Amistad Project / Thomas More Society
    Supporting Parties / Amici Curiae:

    Constitutional Attorneys
    PA General Assembly
    PA State Senators
    Christian Family Coalition
    PA Speaker and Majority Leader
    106 U.S. House Reps
    Arizona State Legislators
    Idaho State Legislators
    Idaho Lt. Governor
    Freedom Fund
    GA State Legislators
    Lin Wood
    States on the fence:

    Idaho
    Iowa
    Kentucky
    New Hampshire
    Ohio
    Wyoming
    Defendant States:

    Georgia
    Wisconsin
    Michigan
    Pennsylvania
    States Supporting GWMP:

    California
    Colorado
    Connecticut
    Delaware
    Hawaii
    Illinois
    Maine
    Maryland
    Massachusetts
    Minnesota
    Nevada
    New Jersey
    New Mexico
    New York
    North Carolina
    Oregon
    Rhode Island
    Vermont
    Virginia
    Washington
    Territories Supporting GWMP:

    Guam
    U.S. Virgin Islands
    Washington DC
    Other Parties Supporting GWMP:

    Montana Governor
    Detroit
    China
    FBI
    MSM
    Silicon Valley

  27. Wow. Texas’s reply is … really really really bad.

    It is uniquely unserious as a legal document, and continually reminds the reader of how terrible the claims are.

  28. The US will become a permanent one party state as California is. The Democrat Party cheaters must be stopped by the Supreme Court.

    1. 1. I’d rather the US didn’t become a one-party state, like Mississippi. At least California has Hollywood and Silicon Valley and an aerospace industry and agriculture and culture.

      2. No one takes you seriously if you say “Democrat Party.”

      3. There was no cheating.

      4. It is not the job of the Supreme Court to do your bidding; it is to clarify the law, and to resolve circuit splits, and to act as the higest appellate court in the land. Not to answer tantrums.

    2. I’ve never understood the “one party state” argument. Here it’s just factually wrong, seeing as the Republicans will likely retain a majority in the Senate. But even if Republicans got the couple dozen or so votes nationwide that they truly deserved, all that would mean is that they no longer speak to the current needs of voters, just like the Whigs and the Democratic-Republicans before them.

      A first-world country in the 21st century has no need for a major political party that openly rejects modern economics, science, epidemiology and, now, democracy itself. The things the Republican Party once claimed to stand for – smaller government, free trade and free markets, American military leadership, etc. – could certainly be represented by _a_ political party, but it’s patently clear they’re not represented by _this_ political party. Let the Trumpublican Party die and let something else take its place.

      1. The argument is that if the mischief they got up to this year is effectively endorsed by the Court, 2 years from now they’ll turn it to 11. Just casually rewrite election laws anywhere they’re in control.

        1. Your argument about this particular election are entirely unrelated to whether or not our nation still requires the Trump Party’s continued existence.

  29. I am amused that Trump’s new lawyer is John Eastman. As chairman of the anti-LGBTQ National Organization for Marriage, Eastman was paid $700,000 by the organization to sue the IRS. NOM received $50,000, taking a loss of $550,000. NOM’s president, Brian S. Brown, had the balls to claim victory.

    In any event, the electoral college makes it official on Monday. It is hard to imagine the Court hearing this case thereafter. No?

    1. Tough morning – a loss of $650,000!

  30. So now that briefing is complete (although the truly stupid motions for leave to file amicus briefs continue to pile in), anyone want to speculate on when the Court will act?

    I predict by the end of today.

    1. I’m guessing they’ll schedule the decision for next Tuesday, just to make it extra clear they never even considered for a moment ruling in favor of Texas.

      But if we’re really lucky, they’ll rule in Texas’ favor, but then declare that there’s no available remedy, so, “Just don’t do this again!”

      I think that’s the best we can hope for, the Court would have taken that pre-election challenge if ruling in favor of Trump was actually on the table.

      1. “But if we’re really lucky, they’ll rule in Texas’ favor, but then declare that there’s no available remedy, so, “Just don’t do this again!”
        Wouldn’t this be the worst possible outcome? Wouldn’t it amount to the Court saying Trump is right and he did win the election but fraud on the part of his opposition will deny him the office? And, yes, I fully appreciate what a massive poke in his eye that would be.

        1. The worst possible outcome would be to overturn, or initiate a process to overturn, a Biden victory. If that were to happen, the Democrats’ case that the election had been stolen would be much stronger than any case Republicans can make.
          There are a dozen ways that the Court can fire a warning shot towards states for not enforcing the rules, but just consider the irreparable harm that would be caused by actually changing the outcome. I would wager that all 9 justices look at such an outcome as totally unacceptable.

Please to post comments