Posted December 10, 2020
By Byron King
Texas Wants a Day In the Supreme Court
This week, the state of Texas sued four other states in the U.S. Supreme Court.
States have historically sued each other over issues like water rights or to define exact boundaries after a river shifted its banks or such.
But this lawsuit concerns the 2020 election for President.
And this may be the most important case that the Supreme Court hears (or does not hear) in your lifetime.
That is, if youre pleased with the outcome of the 2020 election so far with President-elect Joe Biden you may be disappointed.
And if youre not pleased with the outcome again, with President-elect Joe Biden you may also be disappointed.
Things should happen fast with this lawsuit. It will resolve one way or another in perhaps a week, or a few weeks at most.
Time is of the essence here. One way or another, somebody is going to be sworn in as President at noon on Jan. 20, 2021. Theres a hard, Constitutional deadline in play.
You ought to understand whats going on.
Lets dig in
The first thing to understand is Civics 101: everyday voters do not elect the U.S. President.
Then again, many Americans dont study civics in school anymore. They dont know the basics. And its not as if people receive instruction on how to properly run the country from watching television.
The point is, on election day voters merely vote. They cast a ballot and indicate a preference for one candidate or another.
Then under federal and state law, each state appoints electors based on the outcome.
Electors are obliged to vote for the candidate who won the balloting in their state; exceptions being Maine and Nebraska, which allocate electors by Congressional district.
Eventually the electors in the context of the Electoral College choose the President.
Yes, the people have a say via voting. But structurally, its electors who decide the President.
If electors cannot reach a majority for any candidate, the Presidency is resolved by a vote in the House of Representatives, with each state delegation having one vote. (U.S. Constitution, 12th Amendment, ratified 1804.)
In modern history, every U.S. presidential election has been resolved by the Electoral College.
No one alive today has ever seen a U.S. election go to the House of Representatives. Youd have to go back to 1876, and before that to 1824 to find an election decided in the House.
Which brings us to Dec. 7, 2020, when Texas filed suit against Pennsylvania, Georgia, Michigan and Wisconsin over how the latter ran their presidential election process this year. Ill get into details in a moment.
This Texas suit comes after a month of President Trump and his reps litigating various aspects of the election in numerous state and federal district courts, with no success.
Now, though, we have something right smack on the table before the Supreme Court. In a legal sense, the election is back in play.
Texas wants to void the process of choosing electors in Pennsylvania, Michigan, Wisconsin and Georgia.
If successful, the Texas action would deny a majority of electoral votes to Biden, and perhaps to Trump as well. This would force the election into the House, where Republican state delegations are a majority. Presumably, theyd collectively vote Republican (but you never know).
Heres the basis for all of this
Under the Constitution, states can sue each other State X vs State Y in the Supreme Court, without first having to file in a federal district court and go through appeals via circuit courts. The Constitution grants original jurisdiction to the Supreme Court over disputes between states (Art. III, Sec 2).
This concept goes back to 1787. Under the Constitution, each of the 13 states agreed to surrender elements of sovereignty towards the larger purpose of forming a federal government. A Republic, if you can keep it, as Benjamin Franklin said to Mrs. Powel.
But each state still required a mechanism to assert rights in case of disputes, especially with other states. So the Constitution opens the Supreme Court to such litigation.
Usually in litigation between states like over water rights the Supreme Court appoints a special master to gather evidence, review the law and make recommendations for the Justices to review. And usually, time is not an issue.
But with this Texas case, time is critical.
Federal law controls the process and timing of how the Electoral College is assembled, meets and votes.
The Electoral College is supposed to meet and vote on Dec. 14 next week.
Well see Because the federal law that sets that date is just a statute.
Texas is making Constitutional claims. Its citing direct wording from the foundation document.
Procedurally, Texas is asking the Supreme Court to stay electoral college matters. That is, place a hold on the Electoral College meeting, in whole, or perhaps a stay on certain delegations from certain states.
Absent a majority of electoral votes for either candidate for President, wed wind up with the election going to the House.
The only hard date in the Constitution is noon on Jan. 20th of every fourth year, when the term of the previous President expires. (Constitution, 20th Amendment, Section 1, ratified 1933.)
We have seven weeks.
So what is Texas asking the Supreme Court to do?
You can read the pleadings yourself, in excruciating detail. Theyre available at the docketing site of the Supreme Court, here.
The Texas complaint is lengthy, but available here.
But Ive read all the pleadings, so you dont have to
In essence, heres what Texas claims:
- Generally, every state is responsible for its own elections.
- The Presidency and Vice Presidency (P/VP), however, are the only two offices in the land that have input from a nationwide pool of voters.
- In this sense, every state has an interest in the integrity of elections in other states.
- If a state assigns P/VP electors based on fraudulent outcomes, the effect is to cancel the votes of electors from states that held secure and accurate elections.
- The assignment of P/VP electors is a unique process of federalism, reserved for selecting who will hold the executive power of the nation under the Constitution.
- Because of the national nature of selecting a P/VP, the security of state elections for the offices is elevated to the level of a federal issue.
- The four defendant states Pennsylvania, Michigan, Wisconsin and Georgia all adopted last-minute changes to voting processes that increased the likelihood of fraud: especially, mail-in voting.
- These changes were executive, administrative and/or judicial in nature, and not adopted per the legislature as defined in the Constitution (Article II, Section 1).
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