Election 2020

Supreme Court Unanimously Denies Texas Emergency Relief, Refuses to Grant Motion for Leave to File (Updated)

The Supreme Court, 7-2, voted to deny Texas AG Paxton's motion for leave to file its election complaint. Justices Alito and Thomas would grant Motion for Leave, but provide no other relief.

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This evening, in Texas v. Pennsylvania, a unanimous Supreme Court refused to grant Texas Attorney General Ken Paxton an injunction or other relief that would bar the selection of presidential electors in Georgia, Michigan, Pennsylvania and Wisconsin. As detailed in the just-released order, seven justices would deny the Texas AG's Motion for Leave to file a complaint, citing a lack of Article III standing. Justices Alito and Thomas, citing their long-standing belief that the Court lacks the discretion to deny the motion, would have granted the motion, but would have provided Texas with no other relief. In other words, not a single justice believed Texas deserved the extraordinary relief it sought.

The Court's order reads:

The State of Texas's motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.

Statement of Justice Alito, with whom Justice Thomas joins: In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction. See Arizona v. California, 589 U. S. ___ (Feb. 24, 2020) (Thomas, J., dissenting). I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue.

This puts an end to Texas Attorney General Ken Paxton's effort to upend the results of the November election. It should also put an end to the efforts by the Trump campaign and its allies to delegitimize or otherwise challenge the election results.

This result was not a surprise. As I indicated in my prior posts on AG Paxton's initial filing, the intervening briefs, amici, state defendants' responses, and Paxton's feeble replies, this case never had merit. As the Court concluded, Texas could not satisfy the requirements of Article III standing to challenge the election procedures utilized by other states to select presidential electors. What is more, even the two justices who believed the Court was obligated to hear the case–arguably the Court's two most conservative justices–did not believe Texas was entitled to the extraordinary relief it sought, relief which would have been necessary for AG Paxton's last-ditch effort to have any result on the electoral college. AG Paxton's office submitted transparently weak arguments, and the Court summarily dispatched them.

It is important to underscore that the Supreme Court's decision is, for all practical purposes, unanimous. Justices Alito and Thomas have long held the view that when a state seeks to invoke the Court's original and exclusive jurisdiction, the Court is obligated to hear the case. (See, e.g., their dissent from the Court's refusal to hear Arizona v. California.)  This is a serious argument, which Ilya Somin discussed here and which I suspect may be correct. So while the vote on Texas' Motion for Leave was technically 7-2 on this basis, the Court was 9-0 in rejecting AG Paxton's attempt to get any sort of actual relief, such as an injunction preventing states from appointing presidential electors. Not a single justice was willing to express any sympathy for any aspect of Texas's legal claims.

As for the rest of Justice Alito's statement, what "other issue" might he be referring to? I suspect this is a reference to the Pennsylvania litigation that is still pending, about which Justice Alito previously issued a statement.

On the rest of the Court's order, it is significant that the Court did not merely note the lack of standing, but also specified that Texas had not "demonstrated a judicially cognizable interest in the manner in which another State conducts its elections." In other words, one state cannot invoke the jurisdiction of the federal courts to challenge another states election processes, even when it concerns the selection of presidential electors. This should discourage other states from trying such things in the future, whether to raise Electors Clause claims, Equal Protection claims, or anything else.

As I have already noted, this should not have been a surprise to anyone who was paying attention. The briefs submitted by AG Paxton's office were weak on the facts and weak on the law. In some respects, as I noted in prior posts, they were downright embarrassing. The briefs filed in support of Paxton's claims were, on the whole, not much better. Those attorneys who were willing to file briefs that actually embraced the substance of Paxton's claims should be particularly embarrassed. If Paxton's own Solicitor General would not sign on to these briefs, why would the SG of Missouri or Utah?

There remains a serious legal question about the constitutionality of the Pennsylvania Supreme Court's decision to extend the deadline for the receipt of absentee ballots beyond the statutory deadline. This decision has much in common with the decision of the Florida Supreme Court that was vacated by a unanimous Supreme Court in 2000. Unlike in 2000, however, the outcome of that question could not effect the election result. Nonetheless, if the Court wants to consider that issue, there are multiple pending petitions for certiorari (herehere, and here) that it could grant in the normal course. If anything, the legal events of the past few weeks should establish that the issue raised by the Pennsylvania Supreme Court's actions are capable of repetition yet could evade review if not addressed by SCOTUS.

The #Kraken may have been released. Tonight's Supreme Court order should also have put it out of its misery.

P.S. Also in tonight's order, the Supreme Court also granted certiorari in Goldman Sachs Group v. Arkansas Teacher Retirement System.

UPDATE: I also recommend this analysis of the order by Howard Bashman at How Appealing. Among other things, he notes that Justice Alito's statement is styled as just that–a "statement"–indicating it contains separate views and does not signify any dissent from the Court's order.

 

[Post updated]

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  1. The good news is, we’ll always have the memories.

    1. No, Trump isn’t going away. And Trumpers are going to just keep getting louder and louder because of this.

      This controversy…will be with us for at least the next four years.

  2. Called it. End of day today.

    Even the Alito and Thomas obligatory note saying that they had to take the case was a big “eff you”, albeit understated.

    Now, let’s see who gets the not-so-subtle hint.

    1. Maybe not-so-subtle to you, but way way way too subtle for the required audience.

      The definition of insanity is doing the same thing over and over again and expecting a different result.

      Were at, what, one for fifty at this point?

      1. Actually, a little too subtle for me.

        Does this mean the claims have no merit, or that they might but the proposed remedy, even if they do, is unjustified, or something else entirely?

        1. Other courts have ruled on the merits, something like 50 cases so far, but it’s still only about 8pm on the east coast.

          The only reason this got to the US Supreme Court was via a technicality about state v state suits. Any other case would need to first adjudicated by lower courts and only wind up at this level after several appeals, and then the SCOTUS could just deny cert without comment.

          But they had to respond to this one, and, basically, the court said, “You want a technicality? I’ve got your technicality right here, buster. What part of NO don’t you understand?”

          Agree that it would be satisfying to read a beat-down on the merits in hopes that it might mitigate “the dangerous tide of conspiracy-mongering about the election by Trump and many of his allies”, but a win’s a win.

          Anyway, the true believers wouldn’t be swayed by a rational, logical. legal analysis of why the suit failed, they’d just double down and believe even more strongly whatever crap Guilliani and his clown show feed them.

          You do read the comments here, don’t you?

          1. I understand all that. What’s not clear to me is the meaning of the Alito/Thomas comment about not granting other relief.

            I get that they think the court has to hear the case, but not the rest.

          2. “The only reason this got to the US Supreme Court was via a technicality about state v state suits.”

            No, not quite.

            US Constitution Article III Section 2.

            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.

            A federal statute can not reduce the Supreme Court’s original jurisdiction as specified in the constitution from all suits in which one state is a party to only suits between two states.

        2. It is about as big a thumbs down as you’ll ever see in this medium.

    2. I don’t see it that way. Seems to me a state legislature could simply legislate cheating in an election (or just actually allow cheating rather than explicitly stating it in an effort to get the people thinking they elected the pre-determined winner of the state). Assuming cheating occurred, then the legislature has the standing and authority to allow it, or seek relief in a vote deciding who the winner will be. Which is why Thomas and Alito say there will be no relief to Texas.

      It’s good to see a informative article on this issue on Reason’s website, though the Reason staff still seems infected with TDS. Heck, there’s another article where they say the Freedom Caucus had lost its credibility by supporting this lawsuit. And claiming they’re showing fealty to Trump, instead of the rule of law and shall we say, honest elections. Seems to me, they’re supporting honest elections and the rule of law and Constitution. No examination of the merits of the evidence was included, and it was assumed there is none.

  3. Well, that’s not exactly surprising, but it does somewhat restore my faith in our system of government. Trump put three justices on the court and none of them felt it necessary to “return the favor”, instead ruling as the law required.

    Not sure what to do about the massive number of congressmen and attorneys general that signed on to this farce. Maybe just let it go and let them feel embarrassed, assuming that’s still possible.

    What’s next? Refusal to accept the electoral college in the house? Not sure they can do that, but call me surprised if they dont.

    1. They will very much try to challenge the results of the electoral college. It will of course fail, but put all the Rs in the embarrassing position of voting to shit on democracy.

      1. Take it to the bank. There will be a roll-call vote in the House on whether to shit all over democracy despite the fact that a substantial minority of House Republicans would really really like to avoid going on record.

        Brett’s fantasy about Trump conceding on Monday after the EC votes is just that: fantasy.

    2. Didn’t particularly surprise me, though I thought they might drag it out to next Tuesday then dismiss as moot, just to be obnoxious.

      What’s next is individual states attempting to erect barriers against this sort of illegality, with the Democrats attacking the effort as “vote suppression”.

      Oh, and Monday Trump concedes, but not graciously.

      1. “Oh, and Monday Trump concedes, but not graciously.”

        I hope you’re right, but it’s not the smart way to bet.

        “Sorry, Monday’s out. How about never? Is never good for you?”

        1. On Monday the EC votes. Once they’ve done that, the actual election is over.

          And there’s no point for further legal challenges, the Supreme court’s big upraised middle finger proves that.

          And Trump knows quite well that the GOP establishment do NOT like him, even if they can’t come out and say it without retiring. So the House simply isn’t going to rescue him, here. Not the least because House members aren’t any more interested than Supreme court justices in having their homes firebombed.

          No, he will concede Monday, it’s the earliest point after this where he can justify doing so.

          1. You know what might make you happy?? If you play the Fox News coverage of Shock and Awe you recorded on your VCR. I know that cheers up Kavanaugh and ACB.

            1. 1) I don’t have a VCR.

              2) I don’t watch Fox News. Never have, I was an early cable cutter.

              1. 1) Who does anymore?

                2) Who does anymore?

              2. Around 2003-04 when everything was free online I didn’t have cable and I had a VCR and knew how to set a timer to record over the air broadcasts along with DVD player and Netflix DVD by mail. In fact that was the one season of The Apprentice I watched as well. I think I got cable again to watch the final season of the Sopranos and then Mad Men and other good shows started coming on cable.

              3. What has cable cutting got to do with Fox? Of course you can cut the cable, and then watch Fox on the internet.

          2. Most voters don’t like the President, either. I mean, do you?

            1. I’m like Beorn. I don’t like Trump, but I hate Democrats more, and for good reason.

          3. House members aren’t any more interested than Supreme court justices in having their homes firebombed.

            Oh stop with that idiocy. It’s fucking moronic. Sometimes people do something you disagree with for good faith reasons.

            Are you truly incapable of accepting that?

          4. House is Dem, also. Probably makes that a no-go.

            1. The way the House chooses the President, each state gets one vote.

              The GOP will win that vote.

          5. On Monday the EC votes. Once they’ve done that, the actual election is over.

            Nope. An election is not over until the votes are counted. The EC votes, but then Congress has to decide whether to accept the vote. Several GOP loons in the House have already said that they intend to challenge it. They need a senator to go along, and might get one. It’s still doomed to fail as a tactic, but that has never stopped Trump before.

            And Trump knows quite well that the GOP establishment do NOT like him

            Still living in the fantasy world, Brett. The GOP establishment as it exists in 2020 supports him 1,000%.

    3. Trump can arrest the fraudulent electors on the day the EC convenes and charge them with conspiracy to commit voter fraud. That would force the house to decide the results since adjudicating charges against the electors would run out the clock.

      Even if they are ultimately found not guilty, it will be too late since Trump would have already been sworn in.

      1. House can solve that problem by only seating Democratic members.

  4. Barring some monstrous revelation, I can’t see justification to hold this up. Wasn’t this basically the same thing in 2000, as in how dare you, by constantly recounting, hold up FL certification, so denied, stop doing that!

    Of course, the shoes were on the other foot, then. You’ll note they chimed the same refrain, with a tiny twist, “All votes must be counted.”

    1. Not at all like Bush v Gore in 2000. Reasonable people can disagree about Bush v Gore; I can at least respect the legal arguments of those who think differently than me (well, some of them anyway) about that case.

      This suit was the equivalent of making the chess move “King’s bishop to Albuquerque”. As Knuth would put it, “it’s not even wrong.”

      1. ” Reasonable people can disagree about Bush v Gore”

        Uhm, no… 1) Every count of the ballots lead to Bush’s win of the state (Even when some newspapers, after the fact, counted, still Bush won) 2) From the outside, it seemed that they were constantly re-evaluating different ways to count the ballots – hanging chads, I believe there was even a proposal that said, if the down ticket was all democrat, then a vote for Bush was obviously an error and should be given to Gore.
        Supreme court step in, like parents, and smack Florida on its ass.

        1. I think Clem might have meant disagreeing about whether the Supreme court should have butted in.

        2. Nope, almost every recount led to a Gore win. What was needed in 2000 was the secretary of state take charge and set statewide standards…but that could have led to a Gore win which she and Jeb! obviously didn’t want.

          Anyway it all worked out for the best—Iraq is a stable democracy and stabilizing force in the ME, Afghanistan is now known as the Switzerland of the ME, America has had 20 years of strong economic growth, none of our good manufacturing jobs were shipped to China, our border was secured years ago, Al Qaida never successfully attacked American soil, the Ballpart at Arlington is a national treasure superior to Wrigley and Fenway, abortion is outlawed, we have only a $5 trillion debt, and most importantly of all marriage is still only between a man and woman!!Oh, and George W Bush campaigned again for Republicans and they won in another landslide!!! Life is good in ‘Murica!

          U S A!
          U S A!

          I’m being sarcastic if you didn’t catch on.

          1. The Secretary of State did try to take charge. The state supreme court took charge away from her because she wasn’t doing what they wanted, remember?

            After the challenge period, any recounts were discretionary on her part, and she took charge by deciding not to bother.

            1. Nope, her tactic was to drag her feet to run out the clock because W was the initial leader. Look, you were a very different person in those years when you supported making illegals into Americans because their mommy died getting them here. You also loved Iraqi babies getting slaughtered and manufacturing jobs being shipped to China (my nipples get hard thinking about the Chinese economic boom). Many people blacked out during the aughts because they were just a crazy time with everyone whacked out of the gourds on caffeine and Lee Greenwood…if you can’t remember those times you were probably having a great time. 😉

          2. Nope, almost every recount led to a Gore win. What was needed in 2000 was the secretary of state take charge and set statewide standards…but that could have led to a Gore win which she and Jeb! obviously didn’t want.

            Um, Gore was the one who didn’t seek a statewide recount.

            1. I think they’re saying if Kathleen…Harris, I think? Had not acted with such partisan hackery, things might have been different.

              I don’t know about that counterfactual myself.

            2. However it would have turned out this was a massive blunder, IMO.

            3. There was a statewide recount. Gore didn’t like its results and tried to force another recount of only certain parts of the state. The Supreme Court shot that down, saying it had to be all the state or none of it.

    2. 2000 is very simple—a fair recount could have changed the outcome so the governor (brother of the candidate with the initial lead) and his henchwoman dragged their feet on the recount in order to run out the clock to prevent a fair recount. In Georgia the Republican governor and Republican secretary of state conducted fair recounts and nobody stopped them…but everyone figured the margin was too big for a fair recount to change the outcome.

      1. Fair recount. Never, not once, did the Florida totals favor Gore.
        Newspapers, after the fact, re-counted the ballots and still couldn’t find enough votes for Gore. There is no indication that Gore would have won anything.
        The Democrats were trying to get ‘voter intent’ …. you take a ballot, look at how many votes for Democrats and how many votes for Republicans and that, plus some tea leaves will tell you what SHOULD have been punched out for… presumably for Gore. It was getting ridiculous.

        1. Wrong. A statewide recount was prevented by the officials in charge of the election. A constitutional recount would have most likely resulted in a Gore win. Remember Gore was trying to force a statewide recount but Jeb! didn’t want one because obviously a fair recount had the potential to change the result.

          1. A “constitutional recount”; This was the hypothetical recount under rules that nobody actually proposed at time, but they might have gotten around to trying eventually if permitted to keep recounting over and over?

            Gore asked for a partial recount at the last minute because he DIDN’T want a full recount; He could have just as easily asked for a recount of the whole state, as for just 4 counties he did really well in.

            The whole state recount was a hail Mary pass after that failed, and he might even have gotten that, if his side hadn’t insisted that there couldn’t be a uniform standard, THAT was what brought some of the liberals on the Court on board.

            1. Lol, no. Use your brain—if Gore’s partial recounts changed the results W Bush could ask for recounts in Republican counties…it really is that simple!! After 2000 GA clearly passed legislation on how to handle a recount but in 2000 Florida didn’t have a law on the books about handle a statewide recount so recounts were done at county/precinct level.

              Once again, pop in your VHS tape of Fox News’ Shock and Awe coverage and then maybe watch a show about heteros getting married…that will surely cheer you up because those things apparently are very important to you. God I miss living in a country where marriage was between a man and woman…it’s Adam and Eve not Adam and Steve!

          2. Wrong. A statewide recount was prevented by the officials in charge of the election.

            Wrong. No “officials” had any authority to order or prevent one.<blockquote. Remember Gore was trying to force a statewide recountAlso wrong. He didn’t need to “try” to “force” any such thing. He just had to file for one. He chose not to. He chose to only request recounts in a few counties.

            1. All wrong as usual…there was no mechanism for a statewide recount…you had to go county by county.

              1. I don’t understand your point. If a recount takes place in every county, a dictionary would call that “statewide.” Gore chose not to seek that. Nobody — not Jeb, not Kathleen Harris — had the power to prevent him from doing that.

  5. Wow. I wonder how they got to Alito and Thomas.

    1. Gorsuch, Kavanaugh, and ACB spiked their Ovaltine.

      1. Kavanaugh is still suffering from PTSD from his confirmation hearings. So he doesn’t really have sound judgement right now.

    2. Well, that much is obvious: None of them are interested in having their homes firebombed, having to wear body armor for the rest of their lives, or putting their families into the witness protection program.

      Overturning the result would have resulting in open warfare, making this summer’s mostly peace look like genuine peace.

      You think they’re going to risk that, when they might have a better vehicle later to establish the important point, that only state legislatures get to change the election laws for President?

      1. It also seems like they might have wanted to make a decision that was clearly correct, instead of one that was clearly not correct.

      2. Bellmore’s First Law:

        No one who does something Brett doesn’t like ever does it in good faith.

      3. Brett, you’re being cute with your opinion as to their reasoning.

        The day the lawsuit was filed in my first post about it I said that I couldn’t figure out how Texas had standing as to what happened in any other state. This was so predictable.

        All the Republicans have achieved is to reduce their chances of controlling the Senate next month and reduce their chances of taking the house in 2020.

        1. Brett, you’re being cute with your opinion as to their reasoning.

          Not cute. Idiotic.

  6. In other words, not a single justice believed Texas deserved the extraordinary relief it sought.

    No. In other words, not a single justice believed Texas deserved the chance to show the extraordinary proof required to get the extraordinary relief it sought. Or, in other other words, they all laughed it out of the room.

    1. The relief really was the stumbling point, I think. If the only relief in question were some kind of fine, or some elections officials going to jail, or even a hearty, “Naughty, naughty, never do that again!”, the Court might have taken the case.

      But every court looks at the remedy, and says, “Nuh uh, not going there.”

      1. So you dispute the rationale stated in the court´s order: that Texas lacks Article III standing?

      2. That is idiotic

        If that were true they would have taken the case in a non emergency fashion and then not granted the relief sought

        the petitioners had no point

  7. What a fucking stupid outcome. One state, who is to be governed by the president another state chooses electors for, doesnt have an interest in that contest.

    Ignoramus Supreme Court.

    1. I’m going to be governed by that same president too. Does that give me, from my house outside of Boston, standing to sue Texas because I think their election rules were improperly issued?

      1. I guess you dont value your vote. Your willing to just shrug your shoulders.

        1. I think the problem is that people DO value their votes which is why every court to hear these suits thinks it’s highly inappropriate to essentially cancel them.

          1. Every vote must be counted. Even the ones that were counted illegally!

            1. The ones that registered voters cast in reliance on the instructions of their elections officials and counted and certified by the officials tasked with counting them? Yes absolutely.

              1. But LTG, these wereurban votes! Deep down Brett doesn’t really think they should count at all, though he’s willing to allow a token count, for the optics, as long as they don’t result in a Democrat getting elected. .

                1. Maybe we could count them as 3/5ths as a regular vote?? I think that would be fair. 😉

                2. Nice. Just be racist. Fuck you, scumbag.

            2. OK Brett.

              You apply for and get an absentee ballot.

              You fill it out, sign it as the instructions say, and send it in on time.

              Now, it turns out the instructions were incomplete, and you were supposed, under the law, to sign and date the form.

              Should your ballot be thrown out?

              Or the instructions say the ballot must be postmarked no later than Election Day. You mail it the Monday before, getting it postmarked appropriately, and it arrives Wednesday. It now develops that the statute requires it to be received no later than Election Day.

              Should your ballot be thrown out?

              In either case, should you be punished because the election officials issued erroneous instructions?

              Because that’s what you are arguing for. It’s like getting a speeding ticket for going 25mph when the sign said the limit was 30mph, but the guys putting up the signs screwed up, and it should have said 20mph.

          2. THERE IS NO LAW.

            If the law says “you must match signatures” and select poll watchers in very specific districts decide not to match them…well…the violation is just “too big” for the courts to get involved.

            In other words…election law does not really exist as long as it impacts “enough” votes to legalize fraud. THAT is what the courts decided. Voter fraud is now legal.

            1. I don’t know what you are talking about, but PA law does not require signature matching.

              1. And in Georgia, signature matching was properly performed.

                1. Then why were virtually no absentee ballots disqualified this year, instead of the around 3 percent that got disqualified in every other recent Presidential election in Georgia?

    2. The standard is not interest, it is standing, which is a complex legal standard that Texas did not come close to meeting.

      1. So, the constitution is supposed to be uniform in application. So a state doesnt incur an injury when all other states dont apply the constitution the same way?

        1. The constitution only had one sentance on the whole subject – of course every state will interpret that a different way.
          Technically, one state could hold a beauty contest to pick electors.
          As for doing things outside of what the legislature specifies – that is done all the time. Legislature is not expert at all things. You don’t want a bunch of State Legislature deciding what is a safe medicine or not.
          Same with elections – or rather the details of how to run one. Logistics on how to get ballots out – who should print them, how should they look. Variations from locale to locale… Which rental company to use to move ballots around… You delegate that.
          And if a legislator thought “Ryder Trucks are Communist”, he/she could have proposed a bill to specify U-Haul (or whatever) as the offical transporter of the ballots.
          All of which is literally none of Texas’ business.

  8. A decent ruling, but I thought it was little beneath the dignity of the Court for Justices Gorsuch, Kavanaugh, and Coney-Barrett to include that one line concurrence reading, “So long and thanks for all the SCOTUS seats.”

    1. Somewhere I thought I read they did double back flips…. or something like that.

    2. Jgalt1975 wins the internet.

      1. They need a “like” button on these comments!

    3. It is worth remembering that President Trump did not pick any judges or justices, he merely appointed them. It is unlikely that those picking saw loyalty to Trump as a critical requirement. In the same way opposition to abortion and gay marriage may have been in the mix but were likely not critical. What was critical will likely come out as decision are written. It will likely be years before we can really say what are the critical philosophies driving Gorsuch, Kavanaugh and Coney-Barrett view of the law.

  9. If this helps Paxton beat George P Bush in a future governor race it was more than worth it. Trump would have effectively beaten Jeb! and his son. #MAGA!

    1. Paxton will be lucky he’s not disbarred and in prison.

      1. Oh come on, you’re leaving out dismemberment and slow garroting. Fatuous asswipe.

        1. The man is under indictment and is being investigated for further crimes. I’m not being hyperbolic. Did you not know that?

          His legal issues have nothing to do with this lawsuit, dipshit. Not a good look to call someone names when they know a lot more about the situation than you do. But you’re a partisan hack so it’s natural for you.

          1. That indictment is a complete fucking sham, and if you had any honest bone in your body, you’d acknowledge that.

    2. Show us on the doll where George Bush touched you.

  10. “This puts an end to Texas Attorney General Ken Paxton’s effort to upend the results of the November election.”

    This is what it looks like to lie through your fucking teeth. Texas Attorney General Ken Paxton’s effort to determine the results of the November election, which widespread election fraud has obfuscated and assholes like you have provided cover for. Go fuck yourselves. Calling yourself “Reason” is to hide what blistering intellectual and physical cowards you all are.

    1. U mad, bro? LOL!

      1. Do you mean:
        “mad” as in “angry” or
        “mad” as in “crazier than a bag of scorpions”?

      2. That will definitely help calm shit down, you fucking putz.

        1. You just going through the thread tone policing with curse words?

          Because it is hilarious.

      3. U a dumbass, “bro”? Go die in a fire.

    2. Lets once again point out of the dozens of suits, not one has produced any credible evidence of election fraud. And that is because the election fraud claim was a lie. For there to be this massive voting fraud that Trump claims, it would have be be covered up by hundreds of local elections officials (both R and D), about a dozen Secretaries of State (both R and D), the FBI, the federal office of election security, the DoJ, and almost the entire Federal Judiciary. And all of them must cover it up while there are many very partisan people out actively looking for evidence of fraud.

      1. “not one has produced any credible evidence of election fraud.

        incorrect. there have been tons of credible evidence produced.

        1. Like what?

          1. The law said “you must match signatures.” And specifically chosen election workers disregarded THE LAW. The courts ruled…well if the fraud impacts “enough” votes then it becomes legal and you don’t have to follow what’s on the books. Thus, the courts have ruled to legalize voter fraud.

            1. Even allowing your take on election LAW, Seeing no fraud still.

        2. You are an imbecile, JoeM64. I would wager that you are a right-wing bigot, too. You are lucky that your betters are gracious enough to tolerate you.

          1. God the smell! Gack, you have an odor like dead turkeys four days in the hot sun. Wash yourself, for crissakes!

            1. Tired of winning yet, JSinAZ?

              Or tired of obsequiously toeing the line established by better Americans, as you have done throughout your shambling life?

              1. Go die in a fire. You’d throw us all in the furnaces, and don’t lie and say otherwise.

          2. Fuck you. My betters? Kiss my ass.

      2. Also it must have been competently done enough to secure a Presidential win but incompetently done enough to not secure the Senate.

        The enemy is both super strong and super weak.

        1. Right. It’s like Schrodinger’s immigrant, who is simultaneously very very lazy and willing to work twice as hard for half the pay to take all our jobs away.

        2. Look, we keep pointing out, states like Pennsylvania recently eliminated straight ticket voting. That means the effort to manufacture votes scales directly with the number of offices you fill in on the ballots.

          This doesn’t prove that fraud was the reason Biden over performed the rest of the Democratic ticket after hiding in his basement all year. But your talking point about how losing the Senate proves there wasn’t fraud is really lame.

          You’d have to demonstrate that there weren’t an unusual number of ballots with only the Presidential race marked, that Biden won due to ticket splitting, instead.

          Maybe you can prove that, but that’s how you’d demonstrate no fraud, NOT snarky remarks about failing to win the Senate that just demonstrate you haven’t looked at the mechanics of voting in these states.

          1. Go back to chasing Obama’s birth certificate, you bigoted misfit.

            1. Jeezus! Do you fucking roll in road kill, you stinking fetid mess?

              1. I stomp clingers in the culture war. This seems to make you cranky. I would expect you to have become accustomed to it by now.

                How’s the kraken? The Elite Strike Force? Trump 2020? Everything progressing to your liking?

                1. No you don’t “stomp clingers.” You’re too busy eating ass all the time.

                  1. “You’re too busy eating ass all the time.” nttawwt.

                2. You stomp on turdpiles and think you’re stomping people.

          2. You’d have to demonstrate that there weren’t an unusual number of ballots with only the Presidential race marked, that Biden won due to ticket splitting, instead.

            No. You’d have to demonstrate that there were an abnormal number of ballots cast in only the Presidential race, and then provide evidence that that was the result of some sort of plot, because, hey, there’s better than 1 in a quadrillion chance it could be legitimate.

            And you can’t do it.

            And stop telling other people what they have to demonstrate. You’re not the schoolmaster here. Do your own work first. You’ve made enough bogus claims about counts that no one has to take you seriously without very strong evidence, and the Paxton filing doesn’t count.

            Oh. By the way, National Review debunked the whole “Biden only” business. You could google it.

            1. I’ll keep getting my news from OANN thank you very much.

            2. OK, not “you’d have to demonstrate”, “you’d have to demonstrate in order to convince anybody who didn’t already agree with you.”

              But you’re not much into that latter, anyway.

              1. Brett,

                For most people who disagree with me, including you, there is nothing that would convince them they were wrong. Nothing.

                Every fact, every data point, would be met with some objection. “The judge only ruled that way because he was afraid his house would be bombed,” or something else.

                Put in scientific terms, your hypothesis is unfalsifiable, so I’m not interested in trying to present evidence that you’re full of shit. I’ve done it a couple of times in previous threads, but that doesn’t seem to have penetrated your skull, so fuck off.

                You do not operate in good faith.

                1. I fear he is operating in good faith, and is just that into rationalization.

                  JtD isn’t in good faith. I’ve seen him change positions as is convenient within a week. Brett doesn’t do that except over year timespans as would be expected for good faith.

                  Ed is an edge case; he legit seems to have some veracity-shame screw loose.

              2. Brett,

                How many “only Biden” votes were there in PA, anyway?

                Here are some numbers to help you out.

                Note that Shapiro, the D candidate for Attorney General, got about 3000 more votes than Biden, while Heidelbaugh, the R candidate trailed Trump by 224,000.
                So there were at least 3000 voters who backed Shapiro but not Biden.

                There were about 60,000 fewer votes cast in that race than in the Presidential contest, a dropoff of less than 1%

                In the other two statewide races the Democrat did substantially worse than Biden, but the Republican/Libertarian vote total beat Trump. There were about 150,000 fewer votes cast in those races than in the Presidential race, a dropoff of about 2.3%

                In Texas there were 11,315,000 votes cast for President, and about 11,000,000 for other statewide offices, for a dropoff of about 2.8%.

                So what strange thing happened in PA again?

                1. So once again, the briefest investigation into Brett’s “facts” and “evidence of fraud” shows that they are nonsense, straight from Breitbart or somewhere.

                  I think it’s clear that his allegations can safely be ignored.

                2. No answer, Brett?

            3. Also this whole business overall ignores a simple explanation for everything: margins can be tight, and voters can be weird. And they might be weird enough as a group to give one office to someone in one party and another office to someone in another party. Look at Ohio. In 2018 Republicans swept every state wide executive office. But very progressive Sherrod Brown won his Senate election and two Democrats got on the State Supreme Court (one got more votes than the candidate for Governor). This year, Trump barely lost ground there and even finally took some traditionally Democratic counties. But another Democrat got on the Supreme Court (another didn’t). Now you could theorize there were a bunch of fake votes for Jennifer Brunner, but that would be stupid.

              Or look at NC. In 2016 Trump won, Burr won. McCrory lost. McCrory complained there was voter fraud, but in that case Democrats apparently focused on him and not the Senate or Presidency. In 2020, Trump won Tillis won. Cooper won too. Why? Voters are weird. It would be stupid to insist Cooper returned to the governors mansion cause of fraud.

              1. Check out the insane margin by which Russ Feingold exceeded John Kerry’s votes in Wisconsin in 2004. A lot of Wisconsin voters split their tickets.

                1. Oh wow, I never realized it was that tight between Kerry and Bush. Obama’s 2008 results on the county map made it look like Midwest Massachusetts. They’ve also returned Tammy Baldwin and Ron Johnson to the Senate. Voters are weird.

                  Iowa is weird too, huge swings Presidentially but returned Grassley and Harkin for 30 years.

                  Voters are weird. And I’m a weird voter too: I’m a Democrat, but I have often voted for Republicans, conservative ones even, in my state’s judicial elections at all levels because I personally knew them to be good judges. Did it this year too.

                  1. I don’t know if they’re weird or not, but it’s likely that millions of people voted in the recent election who do not normally vote and their only reason for voting was to vote against Donald the Douche Bag. People who probably don’t know who represents them in either the House or the Senate. It’s not surprising to me that many of these people would vote for Biden and not waste time on any other race.

          3. Lol at you lecturing anyone on understanding the subtleties and nuances of voting, while obstinately insisting you are correct on the one true election law, disregarding every other legal concept, and think the courts are simply ducking the issue.

          4. “we keep pointing out, states like Pennsylvania recently eliminated straight ticket voting.”

            So did Texas. Are you calling the election in Texas fraud?

          5. Your comment proves you don’t understand the basic principle that the side alleging fraud bears the burden of proof. Nobody needs to prove “no fraud”. It wouldn’t be possible either way. According to Trump’s motion to intervene in Texas v. Democracy, the fraud was so widespread that it was undetectable, so the very fact that there was no proof is all the proof needed.

            Of course, the intellectual giants that thought this strategy a winner are now making noises about secession. My response:

            Dear Texas,

            You get Houston. We take the postal service, our military equipment and personnel, agricultural subsidies, education funding, Medicare, Medicaid, and Social Security. Don’t let the doorknob hit you…..and bless your hearts!

            The UNITED States of America

            1. Were Texas to secede, Houston/Harris County would probably go the way of West Virginia. Add two more Democratic senators.

          6. Brett Bellmore : “reason Biden over performed the rest of the Democratic ticket…. (etc)”

            I admit to honestly not knowing, one way or another. Is this an attempt to be clever or is Brett really that blind. Assuming the latter, let’s explain things to him :

            Trump was arguably the most unpopular president in modern history. There were many polls were he never cracked majority approval from the day he took office & his negatives were off the chart his entire term.

            Trump’s brat child theatrics may have entertained the Cult, but a clear majority of Americans considered him unworthy for the office. In fact, Trump barely tried to expand his political base all during his presidency. He blew-up the critical first debate with a ninety-minute tantrum. His performance on the Covid Pandemic was clumsy, unfeeling and embarrassing at best.

            The obvious point, Brett : Biden didn’t overperform the remaining Democrats, Trump underperformed the remaining Republicans. He was an historically weak incumbent.

            He is a loser : Petty, dishonest, deeply stupid, narcissistic. He has the attention span of a small child & couldn’t project empathy if his (political) life depended on it. He is a reeking turd of a human being.

    3. I guess facts never work the tRumptards.
      ” which widespread election fraud has obfuscated”

      First, tRump says there was wide spread fraud. That right there is a clue that it didn’t happen. If you choose to believe that it did happen, consider this. The Democrats pulled it off so masterfully that no evidence of it remained. You should feel good about Democrats being in the White House… as things are apparently going, USA will soon rule the world.

  11. This statement

    “There remains a serious legal question about the constitutionality of the Pennsylvania Supreme Court’s decision to extend the deadline for the receipt of absentee ballots beyond the statutory deadline.”

    is incorrect.

    The question of the extension of the deadline is a question of Pennsylvania law. There is no federal issue involved, given the Constitution’s mandate that the states set election procedures. Once the Penn Supreme Court has ruled, that’s it. There is no equal protection, due process or any other redress in federal courts. The Pennsylvania Constitution means what the Pennsylvania Supreme Court says it means.

    1. Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

      Where does that say anything about state supreme courts? Yes its a federal issue because its the federal constitution.

      1. The Pennsylvania Constitution governs the Pennsylvania Legislature.

        1. The Constitution says “Congress shall have the power…” does that mean Congress can do anything the Constitution authorizes?

          1. Congress shall have the powerrrrr!

            He-Man rules.

        2. “The Pennsylvania Constitution governs the Pennsylvania Legislature.”

          Do you think that the Pennsylvania Constitution could have, say, the Governor, and not the legislature, decide how the legislators are chosen?

      2. The federal question was addressed and resolved in Arizona State Leg. v. Arizona Indep. Redistricting Commission. Plaintiffs lose, because “legislature” includes the entire process for passing and administering legislation under the State constitution, including voter initiatives if available), gubernatorial vetos, any executive discretion in matters of implementation or interpretation, and judicial review. So Texas [a] lacked standing, [b] failed to state a claim upon which relief could be granted, and [c] would have lost on the merits anyway.

        1. “Plaintiffs lose, because “legislature” includes the entire process for passing and administering legislation under the State constitution, including voter initiatives if available), gubernatorial vetos, any executive discretion in matters of implementation or interpretation, and judicial review.”

          IIUC the voter deadline extension was not legislation, but a remedy crafted under the state’s judicial authority.

          1. the voter deadline extension was not legislation, but a remedy crafted under the state’s judicial authority.

            In accordance with the state constitution.

            1. In violation of the federal constitution.

    2. So if the Penn Supreme Court said the Penn Federal Senators could be electors, there’s no federal issue?

      1. Neither of these two responses explain why the Pennsylvania case has a federal issue. The first simply states that the Constitution gives states the authority appoint electors, which Pennsylvania has done, legally, according to its Constitution.

        But if the state did appoint a Senator as an Elector then there would be a Constitutional issue. But the case would be resolved by the Court simply ordering Pennsylvania to appoint a different Elector. Of course if Pennsylvania went Democratic then Paxton would say, while waiting for his pardon, that in that case Pennsylvania’s electors should be Republicans. Too stupid you say, then you have not meet Mr. Paxton.

    3. Again, the 2000 Florida supreme court salutes your reasoning!

    4. The PA supreme court ruled to legalize voter fraud by declaring “if the fraud impacts enough votes, the fraud becomes legal.” Unfortunately the liberals here at reason are a bunch of rubes that don’t understand the profound legal implications.

      The silver lining is that now that voter fraud is legal, Republicans can do it too…and karma’s a bitch.

    5. I don’t know why anyone is arguing over this as there were something like 9000 ballots that arrived after 8pm Nov 3. If 70% were for Biden, Trump gains what, 2600 votes in a 50k vote race?

  12. No, all it requires is ballot stuffing through drop boxes, unverified signatures, double voters, late night ballot feeds and same day registration abuse.
    Sorry you are ok with this.

    1. That did not happen, no one is ok with that, but it did not happen.

    2. What even is “same day registration abuse”?

      1. When you register to vote on election day, and vote in person, your vote gets counted before there’s any chance to confirm your registration details. It’s not like you’re handed a provisional ballot that gets counted if you check out.

        So it’s possible for people to do same day registration fraudulently, and then nothing can be done afterwards to fix it.

        How often this actually happens is questionable, though. But it is a loophole people could exploit.

        1. Brett, so lying on your same day registration, and then voting, does not subject anyone to criminal penalties? Because the election is over? Does that make sense?

          What you have been saying is that election law interpretations which result in a D win mean the election was lawless, and the courts say fraud is okay. Believing that must be stressful.

        2. What you said is incorrect. To register on the same day you vote you need to provide the same information that you would provide to register prior to election vote. Your registration is verified.

    3. Man, it should be so easy to prove…
      Ballot stuffing – their are records on exactly to whom ballots were sent. Who return ballots and for in-person voting, who showed up at the polls. Every audit showed these numbers to be in line.
      Drop boxes – purely a convenience. If you were told to put your ballot in a box, and the state came back and said your ballot doesn’t count because you put in in a black box rather than the blue one, you’d be pissed. The ballots still had to be verified.
      Unverified Signatures – Penn Supreme Court ruled that you could not reject a ballot on signature alone. Some people signed the ballot first, Middle Initial, Last – but if there card on file didn’t have the middle initial, does that mean they intended not to vote?
      Double voters – the only one caught was a Republican
      Late night ballot feeds – every allegation has been debunked. No one saw late night drop offs of ballots. Again,the ballot totals matched the expected totals. If someone dropped off 100,000 Biden ballots, you would need to find 100,000 shredded or thrown away tRump ballots.
      Same day registration – either you are eligible to vote or you are not. If I can buy a gun with same day registration, surely I can vote as well. The effort of Republicans to remove legitimate voters from the roles is disgusting and un-American. I also personally take great offense at the attempt to cancel Military and State Department votes simply because they are not at home. Just one more disgusting fraud that tRump puts on American and our soldiers.

      1. Pennsylvania Supreme Court disregarded the statutory signature requirement. So anyone could cast a ballot in anyone’s name.
        You don’t see the problem with this? The names could be pulled from registration lists and then ballots prepared and cast en masses.
        You don’t see a problem with this?
        This is how LBJ was elected to the Senate. Read his biography.

        1. 1) that scenario isn’t scalable in any kind of en masse way
          2) there are other checks than signature matching
          3) signature matching actually kinda sucks.
          4) LBJ was a long time ago, and this was not how he pulled off his elections. Plus if that’s what you took from his biography, you’re really doing some selective reasoning.

          1. Also, just to be clear, the Pennsylvania Supreme Court did not ‘disregard’ it. Ballots in fact had to be signed to be counted. The SCOPA held that nothing in Pennsylvania law authorized, let alone required, election clerks to reject a ballot because in their personal opinion the signature didn’t match.

            1. The SCOPA held that nothing in Pennsylvania law authorized, let alone required, election clerks to reject a ballot because in their personal opinion the signature didn’t match.

              And they quoted the actual statute to back it up, rather than the imaginary one that the Trumpists cite.

    4. All those things are legal now. And the courts said they are OK with it but ONLY if the fraud impacts a huge number of votes.

  13. The irony of the Supreme Court’s latest duck is that, in the end, it may have ruined itself — that is, if the Democrats take both Senate seats in Georgia, and Biden is sworn in as president, Schumer has made clear his intent to destroy the Court as an independent institution. Consequently, the Court’s unwillingness to even hear significant challenges will boomerang.

    1. Schumer has made clear his intent to destroy the Court as an independent institution.

      Are you psychotic? Schumer has indicated all along that he’s not a fan of court-packing.

      1. The operant word is “mad”. See upthread.

      2. What he actually said is, “Everything is on the table”. Just like, when Biden was asked about it, he said, “You’ll know my opinion on court-packing when the election is over,”

        Both of them used to oppose Court packing. But that was then, they’ve refused to rule it out ever since RBG died, and Trump made a nomination.

        1. If Democrats want to win in Texas then Roe has to be overturned. I think once Roe is overturned and Texas Republicans force women to plop out rape babies then Democrats will have something to run on.

        2. So perhaps the Republicans show start acting as if they want all the votes in several states thrown out.

          Including Georgia’s.

        3. The only court packing so far, has been by the Republicans. Fear of what the Democrats MIGHT do is irrational.

          1. The bulk of the Republican campaign strategy is drumming up fear on what the Democrats might do. I have a large stack of mailings that prove it.

          2. You clearly are confused about any standard definition of “court packing”. What Republicans have done is not “packing” it is called “appointments”. No extra seats were created, but you knew that.

        4. What he actually said is, “Everything is on the table”

          Which is a far cry from “Schumer has made clear his intent to destroy the Court as an independent institution.”

          1. And is this is also a far cry from “Schumer has indicated all along that he’s not a fan of court-packing”. He’s indicated no such thing, and has clearly bowed to quite the opposite.

          2. Moreover, Schumer’s intent is irrelevant. He doesn’t have the votes to do any of the things people pretend he would do. Democrats taking the two senate seats give him at most 49 votes for these ideas. Probably fewer. (Manchin expressly said he doesn’t support them.)

    2. Great point.

    3. Yes, because noted far leftist Joe Manchin will vote to support that. Or Kyrsten Sinema for that matter.

  14. First- yay

    Second- when are you guys going to let us up or down vote comments?

    Third-where is short circuit? Holiday break?

    1. It’s not up to us. Contact the admins at Reason. Agree it’s a good idea. Along with the ability to see what’s new when you come back.

      1. Up and especially down voting of comments always attracts people who are just routinely down voting the ‘enemy’s’ comments without even bothering to read them. You’ll even get scripts running to do that. Bad idea.

        Being able to see what’s new, and be notified if you’re replied to? That’s good, though.

        1. Getting notified of replies will put Satan in your inbox! Just like when they took Jesus out of the public schools!! Not today Satan! Not today!

      2. The most important improvement, IMO would be the addition of a preview/edit capability.

        Next would be the ability to put more than one link in a comment.

        Other votes?

    2. Ya! I miss Short Circuit also. I check Reason every Friday at 3 and it was missing 🙁

      1. Yay! Just posted.

  15. If anyone’s interested in discussing the actual legal issue:

    How much of a difference is there between the majority’s approach and Alito’s? I understand that they don’t think the court should be able to just decline to hear a case because they don’t feel like it (which, I realize, is often is what happens in these cases). But here it seems like the court is saying that it’s not taking the case because the plaintiffs would lose—and, in fact, would lose on a jurisdictional issue. Is there really a difference between not taking a case because of a lack of jurisdiction and taking the case, then immediately dismissing it for lack of jurisdiction?

    1. Maybe? It seems they’re deciding on different orders of analysis.

      Majority:
      Start with whether there is Article III standing for plaintiff. If yes determine whether to exercise original jurisdiction. If no, deny leave.

      Minority:
      Start with original jurisdiction which there is no authority to not exercise so leave must be granted. Then determine if the plaintiff has Article III standing. If no, dismiss the complaint on that basis. If yes, proceed to the merits.

      1. I see how you could formulate it that way, but I’m not sure what difference it makes. Under that approach, the majority has no choice but to deny leave if standing is absent. And that is what happened here. But if no discretion entered into the majority’s analysis in this case–and they never said otherwise–then why are A/T complaining about it? That’s the part that confounds me.

        1. I think because they think the whole concept of granting leave to file the bill of complaint is bogus in the first place. To them, it should simply be treated like a complaint in the trial court. Other than for vexatious litigators trial courts don’t grant leave to file complaints. People just file complaints. If there is another jurisdictional issue, it’s dismissed for that reason.

          1. Actually, I might be guilty of a misunderstanding (cut me some slack, it’s been a long day/week!). Prof. Adler describes it as unanimous on emergency relief (i.e., that it’s denied) and 7-2 on the bill of complaint itself. So I guess that means A/T *do* believe Texas has standing, else why go into the issue of discretion?

            In other words, A/T think (1) there’s no threshold issue, standing or otherwise, that would mandate denying the motion and (2) because there’s also no ability to exercise discretion, the motion must then be granted. That would make sense I suppose. Or maybe it’s just that A/T at least want a chance for comprehensive briefing and argument on the standing issue. I could understand that too.

            But I’m still thrown off a little by the wording of the A/T statement because it only harps on discretion vel non and says basically nothing about standing. It just seems like an imperfect fit with the majority section.

            1. Yes, Alito and Thomas clearly feel strongly about original jurisdiction cases being mandatory, and that’s the point of their statement. They don’t explain why they think the claims are without merit, although since neither one is a complete lunatic it seems like a fair bet that they do not think Texas has standing. (For what it’s worth I agree with them on this issue, although as I note it seems to be functionally identical in this case.)

      2. Both are jurisdictional. If you decide either is lacking, there’s nothing left to opine on. If the majority agreed with Alito and Thomas it would have to issue an advisory opinion to make their point. The same infirmity plagues Marbury v Madison.

    2. *raises hand* me, me!

      I had the same, or at least a similar impression, I think. The “majority” (or per curiam, or whatever you call it in this case) and the Alito/Thomas statement seemed to be talking past each other a little (more so A/T than the majority).

      But to answer your first question, I think there is a material difference. A plaintiff State in an original jurisdiction action could have undisputed Art. III standing, but regardless the Court might exercise its discretion to decline jurisdiction as a prudential matter. I think it works differently in the reverse direction though. When a plaintiff State lacks standing, there’s no discretion involved; the Court must dismiss/deny the motion for leave. If that’s correct, then A/T’s gripe about discretion seems misplaced because Texas’s lack of standing takes discretion out of the equation.

      As to your second question, I don’t see any practical difference between those two options. As a formal matter, I’m not really sure, because an original action is such a sui generis thing to SCOTUS, but I doubt it makes any difference in that context either.

      Finally, a bit of a quibble with language in the third sentence. It says “All other pending motions are dismissed as moot.”, but shouldn’t they be “denied” instead? Ordinarily a motion is either granted or denied, while cases/complaints are dismissed. For example, in the very first sentence, the motion for leave was in fact denied, not dismissed.

      1. They’re motions to file amicus briefs, and things like that. If the case can’t be filed, they ARE moot.

        1. Thanks for noting that. I do grasp that part. My quibble was really just about “denied” versus “dismissed”, as in, would one properly say the motions are “dismissed as moot” or “denied as moot”? It seems like the latter is more correct. Do feel free to call me out if that ends up being wrong. Alternatively, you could scold me for nitpicking, I guess.

        2. The majority didn’t say the case can’t be filed.

      2. I don’t read the majority opinion to be saying that the court has to deny leave to file a complaint if the plaintiff doesn’t have standing—just that because it’s obvious there’s no standing here, there’s no purpose in letting the case go any further. If, for instance, there’s a case where standing is a closer call, or perhaps one where the problem isn’t obvious and the defendant doesn’t address it, I don’t think it would be inconsistent with the majority’s approach to grant leave to file and then address it on a motion to dismiss (or whatever similar vehicle there is in Supreme Court original jurisdiction procedure).

        1. I think Alito and Thomas, who I also agree probably have it right on this jurisdiction issue, want to treat SCOTUS like a trial court in original jurisdiction cases. A state files a complaint, and the defendant state(s) can move to dismiss for a jurisdictional reason like standing. Or the court can do it sua sponte, (although that would be unusual in a trial court.) Also like the trial court, they can deny preliminary relief in these cases and that is essentially, while not technically and totally, a decision on the merits.

    3. The requirement that states obtain leave to file a complaint within the original jurisdiction of the SCOTUS itself implies a gatekeeper function, beyond the normal requirement of pleading jurisdictional prerequisites.

      If I file a civil action in federal district court based on diversity jurisdiction, I don’t have to get leave of court to file it. If I’ve failed to plead the elements necessary to establish diversity jurisdiction, my opponent can move to dismiss on that basis, or indeed, the district court may do so on its own motion.

      If Thomas & Alito were right, the Court ought never have adopted Supreme Court Rule 17, which necessarily implies that states must win the favorable exercise of discretion (the granting of leave) before its filing is accepted. And as with a cert petition, in exercising that discretion, the SCOTUS can surely consider the probability — or improbability, even impossibility — of ultimate success on the complaint.

      1. Not necessarily. The threshold requirement for granting leave to file might simply be whether the petitioner is a state as represented by the appropriate office, etc.

        Mr. D.

    4. Is there really a difference between not taking a case because of a lack of jurisdiction and taking the case, then immediately dismissing it for lack of jurisdiction?

      In practical terms as to the effect on this litigation, obviously not.

      But I guess the analogy is that, let’s say that I sue WalMart in federal court for discriminating against black WalMart employees, even though I’m not black, or a WalMart employee. I lack standing, obviously. But that doesn’t mean that the court can refuse to accept my case. It must accept the filing, and then dismiss the case.

  16. when Thomas said he would grant leave but no remedy does that no really mean at this time. presumably there would have been oral argument and briefing?

    1. Interestingly, no remedy doesn’t necessarily mean Thomas would rule against them on the point of law.

      1. Keep telling yourself that.

        1. You do understand that was a point concerning what was said, not a prediction of how he would have voted, right? I’m just pointing out the remedy is a separate matter from the point of law.

          1. So… you agree that Thomas does not think that these claims had any merit?

            1. Thomas and Alito certainly are on record agreeing that these claims merit no relief.

              What’s interesting to me is the length to which Alito went to avoid characterizing what he’d written as a “dissent,” or even a “dissent in part while concurring in the result.” In previous original jurisdiction cases, Justice Thomas and he have indeed “dissented,” using that term. Today, I think they wanted to preserve their argument about the Court’s lack of discretion to refuse to hear original jurisdiction cases (which I think is mistaken), and this “statement,” by referring to another dissent, more or less does that.

              But the refusal to use the word “dissent” even on this procedural technicality was assuredly a deliberate one, to forestall arguments to the effect that this was somehow only a 7/2 decision. It was not. It was a 9/0 decision, with … a “statement.”

  17. HOORAY! Massachusetts v. EPA is now vacated!

    h/t Prof. Glenn Reynolds

    1. You overstate a question raised by Prof. Reynolds on his blog — whether today’s decision “would seem to implicitly overrule Massachusetts v. EPA” — into an argument he didn’t actually endorse (i.e., that yes, it does). And that’s regarding a precedent he went on to describe as not standing “for more than climate change hysteria’s ability to influence Anthony Kennedy” anyway.

      Moreover: Massachusetts v. EPA was not an original jurisdiction case. A state’s standing as an intervenor in an appeal from an agency rulemaking doesn’t directly say anything about state standing in original jurisdiction proceedings. Still further: The language about the EPA’s standing in that case was obvious dictum, the majority having just stated that (1) the private petitioners clearly had standing to seek circuit court (and then SCOTUS) review of the EPA rulemaking procedure to which they were parties, and (2) that even just one litigant having standing was enough. And finally, even if today’s order’s one-sentence summary of the original jurisdiction lawsuit’s fatal flaw, lack of standing, were treated as an opinion (instead, for example, as the equivalent of a concurrence in the denial of a cert petition, which I think is closer to the mark), there’s no reason to think it’s a precedential one — and certainly not a clear indication of a new precedent to justify an inference that any prior precedent was being overruled by implication.

  18. I’m sure the media will have headlines tomorrow talking about how all the hand wringing over Trump’s nominees helping him steal elections was all for not, right?

    1. W Bush called Collins personally and urged her to support Kavanaugh…do you really think a Bush lackey like Kavanaugh would stick his neck out for Trump??

  19. Even Supreme Court justices read newspapers and watch the news. And like everyone else who followed the asinine antics of Guiliani, Ellis, Powell, and the moronic attorneys general who joined in the Texas lawsuit, they knew that at no time during all the laughable litigation following November 3 did anyone ever present what is commonly known in the legal world as “evidence” or “proof.” There was no conceivable reason for them to get their hands dirty. No doubt they all spent a pleasant Friday night with their families watching “The Queen’s Gambit.”

    1. Kavanaugh wanted to be on the Supreme Court because they get access to Rehnquist’s secret Quaalude stash—Kavanaugh is probably tripping balls at some underground Disco right now.

  20. “…and I express no view on any other issue.” – Alito (joined by Thomas)

    LOL, is this typical language for SCOTUS? I feel like it is a giant “We would have begrudgingly accepted your bill of complaint, but this shit is dumb as hell.”

  21. For CORYER to apply, wouldn’t the Court have to find that there is a reasonable chance of future temporary orders made by the PA supreme court, usurping authority from the PA legislature, during a pandemic?

    Because the pandemic was the PA supreme court’s ostensible justification for defying a statute which it admitted to be otherwise constitutional and enforceable, specifically, the one requiring receipt of mail-in ballots by election day.

    I think that’s too remote for CORYER to apply.

  22. Scotus 12b6. With significant procedural implications for the Republic. Standing exists to clarify whether a litigant has the right to stand before the court, and where the litigant (or, at least, the class of litigants) is specifically enumerated in the Federal Constitution, reading a prima facie requirement of injury, causation and potential redress into the words “case or controversy” puts a peculiar burden on quasi-sovereign petitioners.

    And there’s no way of knowing if the vote was 7-2.

    Mr. D.

    1. What are you talking about? States are “specifically enumerated in the Federal Constitution” for standing purposes to exactly the same extent as anyone else who could ever have standing in federal court, including the same case or controversy requirement.

      1. No, state standing is distinct from private party standing in many ways. The point here is that making Article III standing a threshold question for a sovereignty filing a bill of complaint fundamentally misuses the standing inquiry. I/C/R exists to make sure that the person before the court has a right to be before the court — otherwise, I could sue for damages tomorrow for the Hindenburg explosion. A state’s having to make that showing in a liminal stage goes against the enumerated duties of the Supreme Court — it’s been given fifty or so quasi-sovereign parties, and it needs to be a bit less officious about checking their paperwork at the door.

        Mr. D.

  23. I had surmised Roberts wouldn’t touch this. (Easy one.) But, as well, despite the nervous condition of my breed, after reading Coney-Barrett, I realized she wields her Scalia not as a sword, as he, but as a shield. Although, Comrade gave her no choice, publicly tugging on “His” conquest’s leash.
    You mentioned Alito, but not Thomas. (Allowing momentarily, that all need to step back from the blackboard, and admit to one’s self: This was never about winning a case. It’s been ALL about cementing a narrative.)
    Thomas? “and I express no view on any other issue.”
    Even still, Justice Thomas plants some phantom foot in the door, the ever slightest of hairs of hope, on OUR Coke.

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