Texas argues that the case ‘presents constitutional questions of immense national consequences,’ namely that the 2020 election suffered from serious constitutional irregularities.
On Monday, Texas filed a motion for leave to file a “Bill of Complaint” with the U.S. Supreme Court to challenge the constitutionality of Pennsylvania, Georgia, Michigan, and Wisconsin’s administration of the 2020 presidential election. The combined filings, which also include a request for an expedited review and a preliminary injunction, spanned more than 150 pages. Here’s what you need to know about this latest election case.
1. This Is Not Bush v. Gore
Texas’s lawsuit is a procedural creature differing greatly from the Bush v. Gore case about the 2000 election. Unlike Bush v. Gore, which traveled to the Supreme Court on appeal, Texas’s lawsuit relies on the Supreme Court’s “original jurisdiction,” or power to hear a case initially.
The Constitution establishes several types of cases that fall within the Supreme Court’s original jurisdiction, but other than cases involving disputes between two states, Congress has created “concurrent jurisdiction” with lower federal courts. This means those other types of disputes may be heard by federal district courts.
Not so in the case of a state suing a state. The U.S. Supreme Court has “exclusive jurisdiction” over such cases, meaning that such disputes can only be resolved by the U.S. Supreme Court.
Paradoxically, however, the Supreme Court does not have to hear a dispute between the states. Rather, controlling precedent holds that whether to hear such a dispute is within the Supreme Court’s discretion. That is why Texas filed a “Motion for Leave to File a Bill of Complaint—because it needs the court’s permission to file the complaint.
In its memorandum in support of its motion, Texas argues that the case “presents constitutional questions of immense national consequences,” namely that the 2020 election suffered from serious constitutional irregularities, including violations by the defendant states of the Electors Clause and the Due Process Clause of the Constitution. The brief also argues that a ruling would help “preserve the Constitution and help prevent irregularities in future elections.”
Texas, however, also argues the Supreme Court’s “review is not discretionary.” In other words, Texas is also asking the Supreme Court to overturn its precedent that holds that the high court need not accept a complaint filed by one state against one or more defendant states. Given the time-sensitivity of the election dispute, it is unlikely that the Supreme Court will want to waste precious days revisiting this precedent—something unnecessary if the Supreme Court accepts the Bill of Complaint on a discretionary basis.
2. The Time Is Short—And the Court Has Already Acted
Along with its Motion for Leave to File a Bill of Complaint, Texas also filed a Motion for Expedited Consideration of its motions, including its second motion, a Motion for a Preliminary Injunction, Temporary Restraining Order, or Alternatively a Stay. In this latter motion, Texas asks the court to order Georgia, Michigan, Wisconsin, and Pennsylvania not to take any action to certify presidential electors, participate in the Electoral College, or vote for a presidential candidate until the Supreme Court resolves Texas’s lawsuit.
Noting that federal law establishes Dec. 8 as a safe harbor for certifying presidential electors, that the Electoral College votes on Dec. 14, and the House of Representatives counts votes on Jan. 6, Texas implores the court to expedite the proceeding, as “absent some form of relief, the defendants will appoint electors based on unconstitutional and deeply uncertain election results.”
Yesterday the court, recognizing the urgency of the matter, ordered responses by the defendant states to Texas’s Motion for Leave to File a Bill of Complaints, and Texas’s Motion for a Preliminary Injunction, Temporary Restraining Order, or a Stay, to be filed by Dec. 10, 2020, at 3 p.m.
3. Texas Presents Serious Constitutional Claims
Notwithstanding some branding Texas lawsuit a “Hail Mary” attempt to block the outcome of the 2020 election, the Lone Star State’s complaint presents serious constitutional issues. Those issues, as Texas puts it, far exceed the electoral irregularities of “the hanging-chad saga of the 2000 election.”
In its Bill of Complaint, filed along with its Motion for Leave, Texas presents three constitutional challenges. Count 1 alleges the defendant states violated the Electors Clause of the Constitution.
The Electors Clause of Article II, Section 1, Clause 2 of the U.S. Constitution provides “[e]ach 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.” As Texas notes, this clause “makes clear that only the legislatures of the States are permitted to determine the rules for appointing presidential electors.”
But, as Texas reveals in its detailed summary of the facts, each of the defendant states, through non-legislative actors, nullified legislatively established election laws in violation of the Electors Clause. For example, several large Wisconsin counties used drop boxes in direct violation of the Wisconsin Election Code that provides detailed procedures by which municipalities may designate sites for the acceptance of absentee ballots. Wisconsin election officials also ignored the statutory certification requirements for absentee ballots, counting votes that the state legislature defined as illegal because they did not include a witness signature and address.
Michigan election officials likewise violated the statutory mandates established by the state legislature, with the secretary of state mass mailing absentee ballots in contravention of state law. And in Wayne County, the home of Detroit’s Democratic stronghold, election officials ignored the state’s signature verification requirement. Georgia also violated the legislature’s requirement for signature verifications, according to Texas’s complaint.
The most egregious violations alleged came from Pennsylvania, where election officials ignored the statutory bar on inspecting ballots before election day, then illegally provided voter information to third parties and allowed illegal curing of the ballots. Significantly, in Pennsylvania these illegal practices only occurred in Democratic strongholds, with Republicans following the law.
These and other practices, Texas alleges, establish a clear violation of the Electors Clause, because that clause makes clear that it is the state legislature—and not administrative agencies, election officials, or even courts—charged under our constitutional system with selecting electors. (This argument finds support in the three-justice concurrence authored by then-Chief Justice William Rehnquist in Bush v. Gore.) From there, Texas’s Count 1 argues that “electors appointed to Electoral College in violation of the Electors Clause cannot cast constitutionally valid votes for the office of President.”
In Count 2, Texas relied on the same facts, then asserted an Equal Protection claim, premised on the reasoning of the majority opinion in Bush v. Gore. In Bush v. Gore, the Supreme Court held that the Equal Protection Clause of the Constitution is violated when states apply differing standards for judging the legality of votes cast for president.
“The right to vote is protected in more than the initial allocation of the franchise,” the Supreme Court wrote. “Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”
Then, citing its detailed statement of the facts, which highlighted the defendant states’ disparate treatment of voters, Texas argues in Count 2 that “equal protection violations in one State can and do adversely affect and diminish the weight of votes cast in States that lawfully abide by the election structure set forth in the Constitution.”
Finally, in Count 3, Texas asserts a violation of the Due Process Clause of the Constitution. This claim is premised on Texas’s allegation that the election practices of the defendant states in 2020 reached “the point of patent and fundamental unfairness,” thus violating substantive due process.
These three counts, and the detailed facts Texas alleges, make clear that Texas’s beef is not with the states’ election laws, but with the states’ violation of their own election laws, in contravention of the U.S. Constitution.
4. Texas’s Standing to Sue
Merely alleging the defendant states violated the Constitution, however, is not enough. Texas must also establish that it has “standing” to sue, meaning it has been injured in a way entitling it to stand before the court and seek redress. In its Motion for Leave, Texas argues at great length that it has standing, and presents three separate bases for it.
First, Texas claims the right to present the constitutional claims of its citizens, who “have the right to demand that all other States abide by the constitutionally set rules in appointing presidential electors to the electoral college.”
Second, Texas “presses its own form of voting-rights injury as States” premised on the structure of the Constitution. “Whereas the House represents the People proportionally, the Senate represents the States,” Texas notes. Thus, “[w]hile Americans likely care more about who is elected President, the States have a distinct interest in who is elected Vice President and thus who can cast the tiebreaking vote in the Senate,” the Texas brief stresses. “Through that interest,” the brief continues:
States suffer an Article III injury when another State violates federal law to affect the outcome of a presidential election. This injury is particularly acute in 2020, where a Senate majority often will hang on the Vice President’s tie-breaking vote because of the nearly equal—and, depending on the outcome of Georgia run-off elections in January, possibly equal— balance between political parties. Quite simply, it is vitally important to the States who becomes Vice President.
Finally, Texas argues it has standing to sue as a representative of the state’s “electors.” These electors, Texas argues, suffer a “legislative injury whenever allegedly improper actions deny them a working majority.” Since “[t]he electoral college is a zero-sum game,” the unconstitutional appointment of electors in other states injures Texas’s electors, according to the briefing.
5. Texas Is Not Seeking to Overturn the Election—Or Install Trump
These injuries, Texas asserts, demand a remedy. But the remedy sought is not what some may surmise is the goal—a second term for President Trump.
No, what Texas seeks is for the Supreme Court to mandate that the defendant states comply with the Constitution, and that means that electors are selected by the states’ legislatures. Texas makes this point clear, stressing: “Plaintiff State does not ask this Court to decide who won the election; they only ask that the Court enjoin the clear violations of the Electors Clause of the Constitution.”
6. Texas Brings the Quotes
The Texas attorney general’s legal team excelled in its briefing. With clear and striking facts and detailed and persuasive argument, Texas has made a solid case for Supreme Court involvement, and along the way, the legal team included some stellar quotes—some from years past and some new classics, such as this opener:
Our Country stands at an important crossroads. Either the Constitution matters and must be followed, even when some officials consider it inconvenient or out of date, or it is simply a piece of parchment on display at the National Archives. We ask the Court to choose the former.
If the Supreme Court does intervene, it will indeed be “in the spirit of Marbury v. Madison,” as Texas put it.
Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and adjunct instructor at the college of business at the University of Notre Dame. The views expressed here are those of Cleveland in her private capacity.