Additional Filings in and Additional Thoughts on the Texas Election Suit - Jonathan H. Adler

[Nevilledog]

https://reason.com/volokh/2020/12/09/additional-filings-in-and-additional-thoughts-on-the-texas-election-suit/

On Monday, Texas filed the most audacious lawsuit of the 2020 election season: An effort
to have the Supreme Court prohibit four other states—Georgia, Michigan, Pennsylvania, and Wisconsin—from selecting presidential electors in accord with the election results certified in each of those states. In this post, I provided some initial thoughts about that lawsuit here, identifying some of the jurisdictional and other problems with the suit. David Post highlights some statistical stupidity that made it into the filings here and here.

In filing this suit against four of its sister states, Texas invoked the Supreme Court's original jurisdiction. Accordingly, Texas submitted several filings, led by a Motion for Leave to file a Bill of Complaint, which is basically the way a state seeking to invoke the Court's original jurisdiction asks the court for permission to file. Additional filings included briefs supporting the motion and requests for extraordinary relief, in this case injunctions against four other states selecting presidential electors based upon the November 3 election results. As Ilya explains, the effort to invoke original jurisdiction raises some interesting issues, not least whether the Court even has the discretion to deny such a request. As recently as this past February, two justices (Thomas and Alito) expressed the view that the Court is obligated to grant such motions and hear state claims.

The Court set Thursday as the deadline for the defendant states to respond to the Texas filings. In the meantime, the docket lists several new filings in the case.

The first brief supporting Texas to be filed came from 18 state attorneys general, led by Eric Schmitt of Missouri. This is a very squirrelly brief. On the one hand, the brief claims numerous non-legislative officials violated the constitution by making changes to election rules to account for Covid-19 (much like happened in Texas too, shhhh!), that such changes increased the risk of fraud, and that Texas has raised "important questions about election integrity" that the Court needs to address. On the other hand, it confines itself to the Electors Clause claim, never mentions the Equal Protection or Due Process claims, and never endorses the Lone Star State's call for extraordinary relief or the invalidation of presidential electors.

At times the brief speaks aggressively of "unconstitutional encroachments on the authority of state Legislatures" committed by officials in the defendant states. At other times the brief merely notes that Texas "alleges" unconstitutional actions. It is almost as if these portions of the brief were written by different sets of attorneys (which is possible given the speed with which this was put together). It would not surprise me if some AGs wanted to endorse the Texas arguments whole hog, while others wanted to maintain a critical distance, and this internal tension was never resolved.

*snip*

[DURHAM D]

1. Just give him a fucking participation letter and a

box of chocolate covered cherries and send him home.

[Nevilledog]

3. Big Macs & KFC might work better.

[Laelth]

2. I highly recommend that interested persons read the entire linked essay.

We have created a beautiful republic that is remarkably resistant to tyranny.



-Laelth

[regnaD kciN]

5. ...and the other articles linked in that essay.

Also, consider that this is coming from a conservative Republican site (NeverTrumper, I'm sure, but still conservative Republican).

[Plectranthus]

4. Rec'd