The Swing States Messed with Texas…Or Did They?

Ken Paxton and other states Attorney Generals at the United States Department of Justice, Feb 2018. Public domain, via Wikimedia Commons

[Editor’s Note: After this piece was published, the Supreme Court denied the Texas case for not having standing and found all other motions to be moot. There were no signed dissents, though Justice Alito was joined by Justice Thomas in noting they would have “grant the motion to file the bill of complaint but would not grant other relief”. The full decision can be read here. Original post follows.]

There’s a reason why I haven’t been using this space — or any other OT real estate — to analyze the many doomed lawsuits filed by Team Trump’s League of Extraordinary Elite Krakens, or whatever. It’s partially because they’ve been discussed ad nauseum here, there, and everywhere, and partially because I am not qualified to interpret and explain convoluted nonsense.

But as OT’s resident legal writer, certain events in the legal world are so remarkable that I would be derelict in my duties if I did not give them some attention, even if they are convoluted nonsense. Currently indicted Texas Attorney General Ken Paxton has initiated such an event. I’ll do my best to explain what’s going on here, and to do so with as much scholarship as the issue merits.

Which is not much.

On Tuesday, Paxton filed the complaint in State of Texas v. Commonwealth of Pennsylvania, State of Georgia, State of Michigan and State of Wisconsin in the Supreme Court, alleging that the Lonestar State was harmed by changes the defendant states made to their election procedures. Among the John Adams quotation, the invocation of Marbury v. Madison, and misquoting of Justice Gorsuch from Roman Catholic Diocese of New York v. Cuomo, the ostensible question of law presented, per the suit, is this:

Did Defendant States violate the Electors Clause (or, in the alternative, the Fourteenth Amendment) by taking—or allowing—non-legislative actions to change the election rules that would govern the appointment of presidential electors? Asking for a friend.

Ok, I added that last part. But it’s a fair question, you may say. And I may agree. But the problem is less with the question and more with who’s asking. Before we get to that, a few things of note.

First, jurisdiction. This case being a controversy between two states confers exclusive, original jurisdiction on the Supreme Court. As we have discussed before, they really don’t like that. Unless there is a stipulation of fact, original jurisdiction makes the Court a trial court, a function it does not relish and has not exercised in a few hundred years. Instead, the Court appoints a special master to act as a fact finder, gathering facts and hearing testimony before issuing a report. This case is heavily fact-dependent, and made so by the complaint, which alleges many of the supposedly sketchy activities that took place on election day, citing much of the same “evidence” we’ve seen discussed in, and dismissed by, several state and federal courts in the last month. The chances that the Nine are going to conduct a jury trial on this issue, read hundreds of affidavits and listen to witnesses like those put forth by Rudy and Co are nil.

Could the Court make a determination on the question of law without a fact-finding exercise? The changes made by the defendant states to their election procedures are likely to be uncontested, as matters of public record. Whether these changes were legal is a question more in the justices’ wheelhouse if raised by the proper parties (and maybe not even then). But the complaint doesn’t stop with that inquiry; it sets forth the accusations of “rampant lawlessness” contained in “a number of currently pending lawsuits” as it must to support its contention that voters in Texas have been harmed by the consequences of changes to voting procedures in other states. The state essentially alleges its citizen’s votes have been diluted by fraudulent votes in the defendant states, a fact which would have to be proven; the Court may not simply take those allegations for granted in determining whether harm has occurred.

So, while the Court properly has jurisdiction, it is unlikely to be willing to exercise it. But that’s not the lawsuit’s biggest problem, from my perspective. The problem, as I alluded to before, is that Texas does not actually have a dog in this fight, or rather they don’t have the right to enter their dog into this fight. They lack standing, a crucial threshold for any lawsuit.

“Standing” means that the party seeking relief 1)has suffered a concrete injury, 2)that can fairly be traced to the actions of the defendant, and 3)will likely, not speculatively, be remedied by the relief sought. The first prong, the concrete injury alleged by the plaintiff, is that Texas voters’ votes were diluted and thus they were denied suffrage.

It is hard to follow, but let me try to break down the allegation, step by step, as best I can understand it: Texas says these states violated their own election laws and/or their own constitutions in making changes to their own election procedures, due to the pandemic. This, they say, resulted in fraudulent votes for Joe Biden, which resulted in these states’ electoral votes going to Biden, which resulted in Biden winning the presidency. This harms Texans, see, because Texans voted for Trump, but didn’t get the president they wanted because the fraudulent votes in other states diluted their votes.

This means Texas wants the Court to find that the governments of other states have a responsibility to Texas, or that Texas should have a say in how other states enforce or alter their voting procedures. The problem is they don’t (and really, neither does SCOTUS.) Saying that Texas has a concrete injury here is like saying that I have a concrete injury caused by Trump for his mishandling of the pandemic, which led to the cancellation of the WVU-OU football game this weekend, which I really wanted WVU to win.

Wait just a minute Em Carpenter, you say, we are not talking about something frivolous like football here. We are talking about voting, the very foundation of our great nation. Ok, fine, but it’s still not Texas’s business how other states interpret their own laws or run their own elections. It is the business of the voters of those states, and they are free to file their own lawsuits (and they have. And they have lost.) The “injury”, if it is fairly called that, to Texas voters is not attributable to PA, GA, WI, and MI any more than it is to Delaware or California or any other Biden-won state. Texas has no individual, particularized right to the president of their choosing.

But, for the sake of argument, let’s assume they do have standing. Their argument assumes as fact that the defendant states have unconstitutionally changed voting procedures, much like my grievance over the football game assumes Trump is mishandling the pandemic. These states all deny that their elections were unconstitutional or illegal, and most of the allegations alleged by Texas have already been finally adjudicated in other courts, are being adjudicated, or are in the appellate stage. This gives even less incentive for SCOTUS to undertake an unprecedented fact-finding trial court role.

Texas also argues that the defendant states violated the federal constitution, not just state laws. That is debatable, since no other court has found that to be the case in any of the many other lawsuits surrounding this election.

One other point on standing is the doctrine of parens patriae, which refers to the power of a state to take action on behalf of its citizens. That is what Texas is actually doing here; when it claims “Texas” was injured by vote dilution, it means the people of Texas, or, at best, its electors. The problem with that is that a state cannot invoke original jurisdiction for an action on behalf of individuals, only for its own sovereign interest.

One of the more popular arguments in the suit, at least among those who are still hanging onto the illusion of there being a chance, albeit one in a quadrillion, involves the “electors clause” of the US Constitution, Article II, Section 1, Clause 2.. The gist of it is that only state legislatures can change a state’s rules on how electors are chosen (i.e., voting rules), not judges or secretaries of state. That is an arguable point of interpretation, but it still doesn’t matter. Using our prongs of standing, even if the defendant states violated the electors clause, it does not follow that Texas suffered concrete, particularized harm by any supposed malfeasance by the other states.

I am sure I have not hit all of the arguments that could arise from this – as I said to begin, I’m not qualified to interpret nonsense. But I’ve endeavored to explain the thrust of this case, and the main reasons why I think this suit is a dud. As of 8:30pm on Thursday, December 10, the filing has been docketed and responses are due today from the defendant states. 17 states have offered their support to Paxton’s suit, with 116 Republican members of congress signing on to an amicus brief. Missouri, Arkansas, Utah, Louisiana, Mississippi, and South Carolina have asked to join Texas’s suit. Disgraced Alabama mall creeper Roy Moore has chimed in his support. Ohio filed a brief supporting neither side and explicitly not endorsing Texas, but urging the Court to take the case anyway to rule on the meaning of the “elector’s clause.” The defendant states have filed their responses. 19 states, 2 territories and the District of Columbia have filed an amicus brief on behalf of the defendants. All of these pleadings can be read here.

The Court is expected to act quickly, so we will likely know the outcome soon. In the meantime, place your bets in the comments section on how this comes out. My guess: 7-2 denial, with Thomas and Kavanaugh dissenting.