Legal Insurrection updates us on the lawsuit started by Texas against four other states for illegally modifying their voting rules in Legal Civil War – 17 States Join Texas Lawsuit In Supreme Court Against PA, GA, MI, and WI

By the time the final count of states is made, the country likely will be roughly split in half before the Supreme Court. While SCOTUS could flip it off with a one-sentence denial without explanation, like it did in the prior suit, a nation so legally divided makes it harder not at least to consider the merits and give an explained decision.

Texas has sued Pennsylvania, Georgia, Michigan, and Wisconsin in the U.S. Supreme Court seeking, among other things, permission to file a Bill of Complaint, and emergency injunctive relief. Responses must be filed by December 10, at 3 p.m.

 

We covered the filing yesterday, Texas Sues PA, GA, MI, and WI In U.S. Supreme Court To Have Legislatures Appoint Electors:

The lawsuit is in the form of a Motion for Leave to File Bill of Complaint. (The Brief in support of the Motion appears starting at page 50 of the pdf. A more complete pdf. with all filings, including the Motion for Preliminary Injunction and a Temporary Restraining Order is available here starting at pg. 111)

The relief sought is a delay of the December 14 statutory deadline for electors to vote, arguing that the Supreme Court has the power to delay that deadline since “[t]he only date that is mandated under the Constitution … is January 20, 2021. U.S. CONST. amend. XX.” The purpose of the delay would be for state legislatures to consider appointing the electors given the unreliability in the way the elections were handled.

This may be the last judicial opportunity, since the U.S. Supreme Court denied injunctive relief as to the Pennsylvania certification in a separate case, with state supreme courts, such as Nevada and Arizona, also denying relief.

Keep in mind that while the Supreme Court has original jurisdiction over disputes between states, such jurisdiction is not mandatory. That is why among the things Texas seeks permission to file the proposed Bill of Complaint.

Throughout the day various Attorney Generals from several other states tweeted their support for the Texas action. That support was finalized with an Amicus Brief filed by Missouri and 16 other states in support of Texas:

SUMMARY OF ARGUMENT

The Bill of Complaint raises constitutional questions of great public importance that warrant this Court’s review. First, like every similar provision in the Constitution, the separation-of-powers provision of the Electors Clause provides an important structural check on government designed to protect individual liberty. By allocating authority over Presidential electors to the “Legislature thereof” in each State, the Clause separates powers both vertically and horizontally, and it confers authority on the branch of state government most responsive to the democratic will. Encroachments on the authority of state Legislatures by other state actors violate the separation of powers and threaten individual liberty.

The unconstitutional encroachments on the authority of state Legislatures in this case raise particularly grave concerns. For decades, responsible observers have cautioned about the risks of fraud and abuse in voting by mail, and they have urged the adoption of statutory safeguards to prevent such fraud and abuse. In the numerous cases identified in the Bill of Complaint, non-legislative actors in each Defendant State repeatedly stripped away the statutory safeguards that the “Legislature thereof” had enacted to protect against fraud in voting by mail.

These changes removed protections that responsible actors had recommended for decades to guard against fraud and abuse in voting by mail. The allegations in the Bill of Complaint raise important questions about election integrity and public confidence in the administration of Presidential elections. This Court should grant Plaintiff leave to file the Bill of Complaint.

These states say they have the following interest in the case:

“In the context of a Presidential election,” state actions “implicate a uniquely important national interest,” because “the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States.” Anderson v. Celebrezze, 460 U.S. 780, 794–95 (1983). “For the President and the Vice President of the United States are the only elected officials who represent all the voters in the Nation.” Id.

Amici curiae are the States of Missouri, Alabama, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and West Virginia.1

Amici have several important interests in this case. First, the States have a strong interest in safeguarding the separation of powers among state actors in the regulation of Presidential elections. The Electors Clause of Article II, § 1 carefully separates power among state actors, and it assigns a specific function to the “Legislature thereof” in each State. U.S. CONST. art. II, § 1, cl. 4. Our system of federalism relies on separation of powers to preserve liberty at every level of government, and the separation of powers in the Electors Clause is no exception. The States have a strong interest in preserving the proper roles of state legislatures in the administration of federal elections, and thus safeguarding the individual liberty of their citizens.

Second, amici States have a strong interest in ensuring that the votes of their own citizens are not diluted by the unconstitutional administration of elections in other States. When non-legislative actors in other States encroach on the authority of the “Legislature thereof” in that State to administer a Presidential election, they threaten the liberty, not just of their own citizens, but of every citizen of the United States who casts a lawful ballot in that election—including the citizens of amici States.

Third, for similar reasons, amici States have a strong interest in safeguarding against fraud in voting by mail during Presidential elections. “Everyvoter” in a federal election, “has a right under the Constitution to have his vote fairly counted, without its being distorted by fraudulently cast votes.” Anderson v. United States, 417 U.S. 211, 227 (1974). Plaintiff’s Bill of Complaint alleges that nonlegislative actors in the Defendant States stripped away important safeguards against fraud in voting by mail that had been enacted by the Legislature in each State. Amici States share a vital interest in protecting the integrity of the truly national election for President and Vice President of the United States.

I don’t think 17 states supporting Texas in itself changes the legalities of what is before SCOTUS. But it certainly changes the optics of the case both publicly and before the Justices. This no longer is Texas going rogue.

You can read here some of the arguments against, primarily that a state has no “standing” to seek to change the result in another state.

Additional states are beginning to file. Arizona has filed a Motion for Leave to file an Amicus Brief, which is unclear as to its ultimate position other than that the court should rule quickly (the proposed Brief itself is not in the docket yet). It’s fair to assume that by the deadline on Thursday, numerous states will have filed in opposition to Texas.

Separately, Donald Trump has filed a Motion to Intervene:

As set forth in the accompanying brief and Complaint in Intervention, election officials in each of the Defendant States altered or otherwise failed to enforce state election laws in the conduct of the 2020 election. The violations of state election law, which is the “manner” the Legislatures of the States have established for choosing presidential electors, violates the Electors Clause of the U.S. Constitution and thus this matter arises under federal law. See Bush v Gore, 531 U.S. 98, 113 (2000) (“significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question”) (Rehnquist, C.J., concurring). Moreover, as explained more fully in the complaint filed by Texas, the number of ballots affected by illegal conduct of state elections officials greatly exceeds the current margin between Plaintiff in Intervention and his opponent in the election for the Office of President in each of the respective Defendant States, and the four Defendant States collectively have a sufficient number of electoral votes to affect the result of the vote in the Electoral College for the Office of President. Proposed Plaintiff in Intervention therefore clearly has a stake in the outcome of this litigation.

This Court should grant leave to file the Complaint in Intervention.

By the time the final count of states is made, the country likely will be roughly split in half before the Supreme Court. While SCOTUS could flip it off with a one-sentence denial without explanation, like it did in the prior suit, a nation so legally divided makes it harder not at least to consider the merits and give an explained decision.

What we have here is a legal civil war.

UPDATE December 10, 3 p.m.

The court docket page still seems to be updating as of this hour.

As predicted, the nation is split. Pennsylvania, Georgia, Michigan, and Wisconsin have opposed Texas, as have at total of 20 other states, D.C, and two territories in a Brief file by D.C.

The District of Columbia together with the States and territories of California,
Colorado, Connecticut, Delaware, Guam, Hawaii, Illinois, Maine, Maryland,
Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, North
Carolina, Oregon, Rhode Island, Vermont, Virginia, U.S. Virgin Islands, and
Washington ….

Ohio takes no side, but wants the Court to decide the substantive issue of whether quickly “whether the Electors Clause permits state courts (and state executive officials) to alter the rules by which presidential elections are conducted.” Arizona’s Brief isn’t in the docket yet, but its Motion suggests it’s not taking a side but wants a quick court decision.

Update 12/11/20 U.S. Supreme Court denies Texas lawsuit “for lack of standing”