The first thing to notice about Texas’s desperation lawsuit, which seeks to overturn the result of the 2020 presidential election, is what does not appear on the front page: the name of the state’s solicitor general, Kyle Hawkins.
The lawsuit is brought against four other states — Pennsylvania, Georgia, Michigan, and Wisconsin — that have certified Joe Biden as the winner of their electoral votes. Thus, Texas attorney general Ken Paxton invokes the original jurisdiction of the United States Supreme Court to hear disputes between states. Yet the brief is not signed by the lawyer who typically represents Texas before that nation’s highest court (as Solicitor General Hawkins did, for example, in the recent Obamacare case).
Plainly, this is because the complaint Paxton has filed is a political document that has no prospect of being taken seriously as a set of legal claims.
There is a lot to be said for Texas’s complaints as a political polemic. It is true that Democrats labor mightily to undermine election integrity. The only rational reason for that is to make it easier for legally unqualified people to cast ballots, and to cast in bulk — and under the influence of progressive activists — the ballots of people who would not otherwise have voted (and whose qualifications may be dubious). It is also true that mail-in voting on a massive scale, favored by Democrats, creates tremendous potential for fraud. This potential is inevitably realized in at least some fraud when coupled with other policies Democrats aggressively push — e.g., the weakening of identification, signature-verification, and witness requirements. It is also true that Democrat-dominated executive officials, courts, and bureaucracies presume broad authority to deviate from the terms of legislatively enacted election laws, under the guise of administering those laws.
All of these matters should be addressed by Congress, and by state lawmakers. Not a single one of them, however, gives the state of Texas standing to sue other states over the manner in which those states enforce (or refrain from enforcing) their laws.
This does not mean the flouting of election laws by officials in Pennsylvania and other states is not a serious issue. It means that if Texas wants to raise that issue, the Supreme Court is not the right forum. To repeat a point I’ve made before, the Court did not grant review of a case from Pennsylvania that it should have taken, involving a narrow, critical issue of constitutional law pertaining to elections, when that issue was raised by parties in the commonwealth who were directly affected. The justices are not going to have the slightest interest in entertaining a sprawling lawsuit brought by an unaffected third-party state — one that, if Texas got its way, would forevermore thrust the Supreme Court into the thick of electoral politics.
I doubt the Court will say anything other than that leave to file Texas’s complaint is denied. In the unlikely event of elaboration, the justices may convey that if Texas has a problem with the way other states administer elections, it should address that through the political process, including through Texas’s large and influential delegation of elected officials in Congress. Such a complaint is not the business of lawsuits . . . unless you’re ready for tomorrow’s lawsuit by, say, California and New York against Texas for trying to disenfranchise its citizens; or the countersuit by Pennsylvania et al. over Texas’s intrusion in affairs over which the Constitution recognizes their sovereignty, such as the manner of conducting elections.
If Texas’s theory is right, then every state now has standing to sue every other state over the latter’s administration of its own laws in connection with its own citizens if it can articulate some collateral consequence that may affect the allegedly injured state in some way. I have a hard time believing that the “Don’t Mess with Texas” State will want to live in the world that its attorney general proposes to create.
In point of fact, every claim raised in Texas’s complaint has already been rejected by other courts; in particular, the Third Circuit Court of Appeals and the federal district court in Pennsylvania.
Texas’s principal claim, for example, is that by administering the election in a way that deviated from their states’ laws, election officials in the defendant states usurped the authority of their state legislatures, in violation of the Constitution’s Electors Clause (Art. II, Sec. 1, Cl. 2). The Third Circuit has explained that not even the citizens of the states where this happened nor candidates for office have standing to press such a claim. How on earth would a different, comparatively unaffected state have standing? Not surprisingly, the rambling discussion of standing principles in Paxton’s brief cites no case holding that a state has standing to challenge another state’s administration of an election.
Texas further claims, on a Bush v. Gore theory, that its citizens’ equal-protection rights have been trampled by the four defendant states’ alleged counting of ballots submitted by unqualified voters. But our Constitution does not provide for a national election — much to the chagrin of blue states that would like to eradicate the Electoral College. We have state elections for president. To the extent that the citizens of Texas have a right to vote, it is given to them not by the Constitution but by their state legislature, and it is a right to vote for a candidate to be awarded Texas’s electoral votes, not those of other states.
Furthermore, the “diminished weight” theory of equal protection (i.e., that counting illegal votes disenfranchises lawful voters) has repeatedly been rejected when posited by citizens within the state where the unlawful voting takes place; the theory is even weaker across state lines. As the Third Circuit has emphasized, “Bush v. Gore does not federalize every jot and tittle of state election law.”
Texas’s substantive due-process claim may be even more fatuous. To repeat, even the citizens of a state where election-law violations allegedly occurred do not have a general, judicially enforceable right to force election officials to comply with state law. They must show a concrete, particularized, non-speculative injury. Even less do states have a right to make other states comply with the latter’s own laws. Texas has no standing to sue, say, Michigan over the failure of Michigan officials to comply with Michigan law, to the alleged detriment of Michigan’s citizens.
Finally, in its proposed lawsuit, Texas does exactly what the Third Circuit, in Trump for President v. Secretary, Commonwealth of Pennsylvania, recently said a litigant may not do. It waited until the eleventh hour to file (beyond that, actually — the complaint was not submitted until after midnight on the federal safe-harbor day). It pleads conclusory allegations (including some, such as mentions of Dominion software, that are plainly included for atmospheric effect, unconnected to any claim for relief). It posits claims that have already been litigated and lost by parties that, unlike Texas, had some cognizable interests. And it seeks unprecedented, drastic relief — the undoing of other states’ elections and disenfranchisement of their citizens; the invocation of the Court’s purported “remedial authority” to order a new “special” election in those states; the vacating of the certification of electors by those states, and the barring of those states from voting in the Electoral College — without citing any case in which the courts have found such breathtaking authority to exist, much less exercised it.
Already under indictment for securities fraud, Attorney General Paxton is currently caught up in yet another corruption investigation — one that has roiled his office. Now, he has filed a lawsuit so frivolous and so blatantly political that the top appellate lawyers in his office evidently declined to endorse it. To be clear, though, this does not mean questions about election-law improprieties are frivolous.
Federal law provides a procedure under which, on January 6, Congress will convene to count the electoral votes. If Texas’s elected representatives, or those of any other state, object to the counting of any state’s electoral votes, Congress will hear, debate, and vote on those objections at that point — mindful of what such disputes may portend for comity between the states. There is, however, no way the Supreme Court is going to entertain Texas’s lawsuit. There is also no way, I suspect, that Paxton doesn’t know that.