The Volokh Conspiracy

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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.