The Swing States Messed with Texas…Or Did They?

Avatar

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

Related Post Roulette

62 Responses

  1. Avatar Saul Degraw
    Ignored
    says:

    Ken Paxton is under investigation for securities fraud. He is angling for a pardon via legal pleadings.

    The rest of the gang are showing a radical contempt for democracy. Or as Pennsylvania Attorney General Josh Shapiro noted: “The Court should not abide this seditious abuse of the judicial process, and should send a clear and unmistakable signal that such abuse must never be replicated.”

    This doesn’t deserve paragraphs of analysis. There is a part of me that wonders whether dedicating paragraphs of analysis to it instead of outright contempt enables them. An inadvertent nod of legitimacy to illegitimate actions.Report

    • Avatar Oscar Gordon in reply to Saul Degraw
      Ignored
      says:

      Just say thank you to Em for doing it, so you don’t have to.Report

    • Avatar dhex in reply to Saul Degraw
      Ignored
      says:

      “There is a part of me that wonders whether dedicating paragraphs of analysis to it instead of outright contempt enables them.”

      this concept is the animating spirit of the most popular theory of persuasion of our age, to be sure, but it’s not healthy. unless you’re rick santorum or aleister crowley, non-local action of this kind doesn’t actually work because magick isn’t real.

      the backbone of this theory of persuasion is as follows: “they” are easily misled, and need to be protected from differing false views. anything which does not outright morally condemn and banish the bad things is going to help them grow. “they” are also dominated by singular villains, whose commitment to falsehood and wickedness is boundless.

      in contrast: “we” come to our views through careful consideration and innate goodness, and our beliefs are difficult to grasp and spread because they are so righteous and morally accurate. “they” only need one drop of a bad belief to be infected; our views cannot spread like this because our beliefs are so delicate. their beliefs are pernicious. our beliefs are barely holding on against the tide.

      if this sounds like evangelical christians railing against secular culture in the 80s that’s because it is the exact same theory of persuasion. it requires one to consider those who do not believe as you do to be helpless, hapless, stupid, or gullible, and to have no agency. it also requires a self-belief of constant attack and near-totalizing valorization of underdog/victim status.

      at least in the 80s part of the culture was arrayed against this theory of persuasion, even if they were often undergirded by an ambient pudding moored in false consciousness, which holds the hapless can at least be “saved” from error.

      needless to say that particular horse left the barn a long while back. the barn is gone, or perhaps never existed.Report

    • Andrew Donaldson Andrew Donaldson in reply to Saul Degraw
      Ignored
      says:

      This doesn’t deserve paragraphs of analysis. There is a part of me that wonders whether dedicating paragraphs of analysis to it instead of outright contempt enables them. An inadvertent nod of legitimacy to illegitimate actions.

      Em’s entire first paragraph was how this suit is utter, contemptable nonsense, and I disagree with you about analysis: some folks still need these things explained to them, and I for one am glad that Em took the time to do so here, especially the way she did where it was more “this is why” instead of her usual in-depth legal breakdown which does not, in my opinion, give any credence at all to the ridiculousness of what is trying to be passed off her.Report

      • Avatar Saul Degraw in reply to Andrew Donaldson
        Ignored
        says:

        I’m in a pretty cynical mood these days about the uses of debate and argument and anything closely resembling bipartisan consensus that everyone is in it for the common good even if we have different methods of getting to the common good. I don’t see fevers breaking anytime soon.Report

    • Avatar HumanScumEsq in reply to Saul Degraw
      Ignored
      says:

      If it didn’t deserve paragraphs of analysis, why did you bother reading it. Moreover, why did you bother writing this comment?Report

  2. Avatar Mike Schilling
    Ignored
    says:

    Did Defendant States violate the Electors Clause (or, in the alternative, the Fourteenth Amendment), or possibly the Infield Fly Rule.Report

  3. Avatar Mike Schilling
    Ignored
    says:

    The state essentially alleges its citizen’s votes have been diluted by fraudulent votes in the defendant states

    Which doesn’t make any sense. If there are fraudulent votes in my county, then, sure, my voting power could be reduced from 1 out of 100,000 to (say) 1 out of 101,000. But Texas gets the same fraction of the electoral vote regardless.Report

  4. Avatar Mike Schilling
    Ignored
    says:

    6-3 denial. Em’s candidates Thomas and Kavanaugh, plus Alito, who never met a boot he wouldn’t lick.Report

  5. Avatar Chip Daniels
    Ignored
    says:

    The scorn here should flow not just from the SCOTUS to the plaintiffs, but from the citizenry to the political party which is perpetrating this.

    This goes beyond just a single individual, but the bulk of the Republican Party has proven David Frum’s prediction true, that they have abandoned democracy and constitutional order in favor of power by any means.Report

  6. Avatar Michael Cain
    Ignored
    says:

    My guess: 7-2 denial, with Thomas and Kavanaugh dissenting.

    Come now. Thomas pass up an opportunity to deny standing?Report

    • Avatar Mark from NJ in reply to Michael Cain
      Ignored
      says:

      Thing is, original jurisdiction is something where Thomas has a pretty clear record of saying the court should take more cases. Ditto Alito.

      I’m going to guess 6-3 or 7-2 refusing to grant leave to file. But I also expect (hope) that one or more of the dissenters states that while they would grant leave, they would also immediately dismiss after granting leave on laches grounds or on grounds of failing to state a claim. I doubt even Alito wants to encourage states to file claims against other states over every election rule they don’t like.

      If there is a refusal to grant leave, I deeply hope that there is a detailed and vicious opinion on the shadow docket from either the Chief or, preferably, Gorsuch or ACB, setting forth how frivolous Paxton’s claims are.Report

      • Avatar Philip H in reply to Mark from NJ
        Ignored
        says:

        Have we seen any such opinion n the Pennsylvania case?Report

        • Avatar Mark from NJ in reply to Philip H
          Ignored
          says:

          The one where the guy challenged his own election? No, and we won’t. That one was a bit different – marginally less insane, but also it never had a formal petition (or debatably didn’t) and more importantly wasn’t the absolute lightning rod this one is. I imagine the court viewed the simple rejection there as giving the case all that it deserved.

          But this one is getting so much traction and publicity and has so many eggs in one basket, plus the slightly more interesting threshold question of original jurisdiction that I think there’s a decent chance the Chief at least will want to use this as a way of trying to create some finality. Even though it was marginally less frivolous (though still outrageously so), the PA case didn’t really present much reason to do more than they did.Report

    • Avatar Em Carpenter in reply to Michael Cain
      Ignored
      says:

      Thomas is always getting pissy about the Court ducking its original jurisdiction though. I would expect at least a separate concurrence to get on that soapbox.Report

  7. Avatar CJColucci
    Ignored
    says:

    Many years ago, I edited a student note on some facet of original jurisdiction. At the time, I was curious to know if there were treatises or known experts (other than practitioners who had a case — they are rare and few have more than one) on the original jurisdiction of the Supreme Court. I couldn’t find any and I advised the student to dig into it to become the leading expert on the topic, and make big bucks handling the cases and writing a treatise.
    A couple of years later, she left the law for another career entirely. Maybe it was my fault.
    As far as I know, there is still no Original Jurisdiction bar, no noted expert, and no treatise. Maybe that will be my retirement project.Report

  8. Avatar Michael Cain
    Ignored
    says:

    Just when you think it can’t get any stranger… The “states” of New Nevada and New California have filed an amicus brief in support of Texas.Report

    • Avatar Philip H in reply to Michael Cain
      Ignored
      says:

      Well if those entities have geographical boundaries, I guess this is the first declaration of Secession. We now know where to send the troops/Report

      • Avatar Michael Cain in reply to Philip H
        Ignored
        says:

        New California has a website with a map. As near as I can tell, New Nevada wants all of the state except Clark County (Las Vegas).Report

        • Avatar Mike Schilling in reply to Michael Cain
          Ignored
          says:

          New California wants everything except Sacramento, LA and parts of the Bay Area, e.g. they want West Marin, East Contra Cost and Alameda.and the non-techie parts of Santa Clara. That is, they think they can isolate and contain liberalism, though I’d expect they don’t think the same about COVID.Report

          • Avatar Michael Cain in reply to Mike Schilling
            Ignored
            says:

            If they put it to a county-by-county vote, there are a number of high-population counties — Orange, San Diego, etc — that will vote to stay with the rest of the cities. Some years back, the 51st State movement in Colorado got an “advisory” item on the ballot in 11 counties. The county where it went down by the largest margin was the one that would have been on the hook for maintaining rural county subsidies, but without benefit of the other big Front Range urban/suburban counties.

            I’ve long said that if these rural movements were somehow required to put together their new state’s first year budget with expenditures, revenues, and the tax rates required to support those, all of them would crash and burn.

            IIRC, at least one of the “split California into six states” proposals was funded by a SF-area billionaire who realized how much lower his taxes could be if the big metro areas no longer had to subsidize the rural areas.Report

    • Avatar Chip Daniels in reply to Michael Cain
      Ignored
      says:

      I am in the process of drafting a brief of my own, on behalf of Even Newer California, seeking to have all of Texas’ votes thrown out since their governor extended early voting without the permission of the Texas Legislature.Report

  9. Avatar Saul Degraw
    Ignored
    says:

    I am still amazed that so many people are seemingly willing to debase themselves and their reputations and possibly commit ritual suicide to appease someone who would gladly and quickly through them under the bus.Report

    • Avatar Philip H in reply to Saul Degraw
      Ignored
      says:

      He’s their path to power for the foreseeable future. They won’t let that go until they are forced to. Its why there won’t be another COVID relief bill no matter how bad the winter gets.Report

    • Avatar Jesse in reply to Saul Degraw
      Ignored
      says:

      Well, you see the other possibility is the idea they might have to appeal to people who do terrible things like… live in cities and possibly moderate on a few cultural issues, Saul.Report

    • Avatar JS in reply to Saul Degraw
      Ignored
      says:

      Money. Have you seen how much Trump raised on this? 200m. He’s spent less than 9 million on legal fees, and most of that 200m went into his Leadership PAC, which has few restrictions on spending. (Except, ironically, it can’t be used to pay for campaign legal fees).

      I have no doubt Wood and Powell have similarly raised ridiculous sums, while spending much less on actual legal work (it’s clear that they effectively crowdsourced both their affidavit gathering and legal filings), and look set to ride the grift machine for years off this.

      If I were on SCOTUS, I would be pushing for a finding a really big cudgel to hit people with, so as not to have people abusing the courts as an arm of a fundraising con every election.Report

  10. Bryan O'Nolan Bryan O'Nolan
    Ignored
    says:

    My prediction? 9-0 against Texas. I’ll say 6-3 against if the dissent is specifically regarding the Ohio request.Report

  11. Avatar Saul Degraw
    Ignored
    says:

    https://twitter.com/akrrun1/status/1337540595741380608?s=20

    Looks like the Texas petition was rejected but I cannot find further detailsReport

  12. Avatar Saul Degraw
    Ignored
    says:

    https://www.supremecourt.gov/orders/courtorders/121120zr_p860.pdf

    The denial was based on a lack of standing. Alito and Thomas do not think the court has a right to deny standing based on the original jurisdiction matter but state they would deny all other relief “and express no view on any other issue.”Report

    • Avatar Pinky in reply to Saul Degraw
      Ignored
      says:

      But I’ve been told repeatedly that Trump’s SCOTUS picks were strictly political hacks. Weren’t they supposed to steal the election for him? If they all ruled according to their stated judicial philosophies, then people must have been wrong. Also, it looks like a lot of commenters here expected a 7-2 decision, which would indicate that they knew the accusations made against Trump’s picks weren’t true.

      ETA: It was Thomas alone who added the last part about denying any other relief.Report

      • Avatar CJColucci in reply to Pinky
        Ignored
        says:

        They aren’t strictly political hacks. They’re genuinely skilled professionals who believe they have theories and principles and believe they believe in them. So there are things they won’t do, and this is one of them.
        That said, they are largely known quantities and, over a broad range of issues, they will largely deliver what is expected of them by people who, unlike Trump, understand the professional constraints on naked hackery. Not because they’re corrupt hacks, but because they aren’t.Report

        • Avatar Pinky in reply to CJColucci
          Ignored
          says:

          So you’d agree that much of what’s been said about Roberts, Kavanaugh, and Barrett has been deliberately false?

          Second question: why all the “believe”s in your second sentence? If they claim to have theories of law, and those theories are predictive of their decisions, on what basis could someone say they don’t really hold those beliefs?Report

          • Avatar CJColucci in reply to Pinky
            Ignored
            says:

            I pay insufficient attention to “much of what’s been said” and who’s saying it to bother to have an opinion on what these anonymous nobodies say they think. If someone whose opinion I care about says something I may feel the need to have a view on it, but otherwise I’ll leave it to whoever to defend whatever.
            As to the “believes,” I don’t think most judges who say they have worked out theories that actually constrain relatively freewheeling decision-making really do. I believe that because the articulated theories don’t usually hold up to analysis, and, over the long haul, don’t predict votes better than realpolitik Supreme Court Kremlinology. That doesn’t mean that they don’t really think that they have real theories, and don’t really think that those theories really constrain them, but, as Richard Feynman said, you are always the easiest person to fool.
            I much prefer hack judges who know that they don’t have grand theories, and just do what lawyers do without the pretentious theoretical overlay.Report

            • Avatar Pinky in reply to CJColucci
              Ignored
              says:

              In this case, though, quite a few people here predicted the outcome.

              As to not having grand theories, one of the important tasks of the Supreme Court is to establish tests that lower courts can apply. Justices like O’Connor or Kennedy tried to balance the Court’s decisions with that “everyone should be a little disappointed” way of thinking, but it resulted in no one having any idea what to expect. I think Roberts has a little of this in him, and it’s probably a good thing for a Chief, but combined with his instinct to make the narrowest possible rulings, it keeps the Court from having a voice.

              As for grand predictors, I can add this case to the three recent impeachment efforts, and I notice that every time, the Republicans have chosen what I consider to be the right thing, and every time the Democrats have chosen what defends the party.Report

        • Avatar Chip Daniels in reply to CJColucci
          Ignored
          says:

          Hacks, man.
          Nothing I hate more than effin’ hacks!

          Say what you want about the tenets of reactionary conservatism, but at least its an ethos, dude!Report

      • Avatar Jaybird in reply to Pinky
        Ignored
        says:

        They’ll probably have some case over whether or not slaves can sue corporations and then they’ll all turn into Nazis again.Report

      • Avatar Em Carpenter in reply to Pinky
        Ignored
        says:

        “ETA: It was Thomas alone who added the last part about denying any other relief.“

        It was Alito, joined by Thomas. Where it says “Thomas dissenting” in the middle is part of the citation for Arizona v California:

        “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.”Report

      • Avatar Mike Schilling in reply to Pinky
        Ignored
        says:

        Trump is dumb, which is why he thought they owed him for appointing them. McConnell is not dumb, and he expects they’ll help Republicans for decades.Report

  13. Avatar Marchmaine
    Ignored
    says:

    I suppose I’ll virtue signal that that I think the outcome is correct.

    On the lesser point of Standing, I’d appreciate some constitutional lawyerly thoughts on how to read the plain text.

    If it were I, I’d simply assume that this is denied owing to Article II and the selection of Electors and *therefore* Texas, et al. don’t have standing to bring suit.

    But, if I were writing such an opinion, I’d include the part about Article II which makes the part about Article III relevant. Because if its not simply assuming and skipping over Article II and is making an Article III claim, then I think Alito and Thomas are correct.

    But, it seems to me so obviously an Article II issue that I can only wonder why only Article III is specified.Report

    • Avatar CJColucci in reply to Marchmaine
      Ignored
      says:

      At the risk of some oversimplification, federal courts are courts of limited jurisdiction. There has to be some basis for you to knock on the courthouse door whether you have a substantive legal claim or not. The substance of Texas’s case, such as it is, is based on Article II. But whether you can get through the courthouse door to press the claim depends on Article III, particularly the doctrine of standing, which basically means that the person bringing the case has an actual dog in the fight.
      The cynical among us think the doctrine of standing is almost — the “almost” is important — infinitely malleable, and frequently used in bad faith to avoid deciding certain issues. Be that as it may, however, the doctrine is based on legitimate concerns that the party bringing the suit has an actual, concrete interest in the outcome and is not just asking a court to decide a dispute between a party with a legitimate interest and a busybody.
      For example, assume a ridiculously unconstitutional law. The State of Utah denies the right to vote or hold public office to anyone who isn’t a Mormon. Lots of legitimately aggrieved persons, such as non-Mormon Utes who want to vote or run for office, would have standing to bring the suit because of their obvious, concrete interests as potential voters or office-holders, and the result would be obvious. But suppose that, for whatever reason, none of those potential plaintiffs brings a lawsuit. I’m a non-Mormon New Yorker who can’t vote in Utah elections, or run for Utah public office, not because I am a non-Mormon, but because I’m a New Yorker. I don’t have any desire to move to Utah and have not even been deterred from moving to Utah because of this law. If I tried to sue, even though the Utah law is obviously unconstitutional, I couldn’t get through the courthouse door because I have no genuine, concrete interest that the Utah law affects. The court would get rid of me for lack of Article III standing, and, almost certainly, say nothing about the obvious First Amendment violation.
      So here. Texas’s claim is based on Article II, and it wants to present this claim to the Court. But it can’t get through the courthouse door in the first place because of Article III. Since Article III keeps Texas out of the courthouse entirely, whether Texas is right or wrong about Article II is irrelevant. So no discussion of the merits.If a plaintiff with standing knocks on the door, then the Court will have to decide the claim.
      I hope that is clear. If not, or if you have any other questions, let me know.Report

Leave a Reply

Your email address will not be published. Required fields are marked *