In about an hour, the Supreme Court’s deadline for submitting motions and amici briefs in Texas v PA et al will expire. After that, the vigil starts. Will the court even bother to take up the case at all, delivering a single-line order dismissing it? Or will they feel compelled to consider it and with it the prospect of changing the results of the election?
The state of Ohio tried a novel approach in its filings. Attorney General Dave Yost and Solicitor General Benjamin Flowers argue that the Supreme Court does not have the discretion to deny consideration in original actions between states, as is the case here. They then urge the court to rule decisively against Texas, arguing that federalism does not allow for states to dictate terms to each other — even though Ohio does have sympathy for the underlying argument:
Article II of the Constitution directs that “[e]ach State shall appoint” presidential electors “in such Manner as the Legislature thereof may direct.” Art. II, §1, cl.2. Whatever “the Legislature thereof” means, it does not mean “the courts thereof.” Thus, when state election codes dictate the manner for appointing presidential electors, state courts must respect the legislature’s work: they may not change the rules by which electors are chosen through judge-made doctrines or by rewriting statutes in the guise of interpretation. See Democratic Nat’l Comm. v. Wis. State Legislature, 592 U.S. __, slip op. 9 n.1 (2020) (Kavanaugh, J., concurring); Bush v. Gore, 531 U.S. 98, 120 (2000) (Rehnquist, C.J., concurring); see also Republican Party of Pa. v. Boockvar, 592 U.S. __, slip op. 1 (2020) (Statement of Alito, J.). This does not mean that state-court interpretations of state law are entitled to no deference. But at some point, a purported “interpretation” becomes “not a construction” of the relevant text, “but a rewriting of it.” State Bd. of Equalization of Cal. v. Young’s Market Co., 299 U.S. 59, 62 (1936). The Electors Clause prohibits such rewritings in the context of presidential elections.
Precisely because Ohio holds this view about the meaning of the Electors Clause, it cannot support Texas’s plea for relief. Texas seeks a “remand to the State legislatures to allocate electors in a manner consistent with the Constitution.” Br. in Support of Motion for Leave to File 16. Such an order would violate, not honor, the Electors Clause. Federal courts, just like state courts, lack authority to change the legislatively chosen method for appointing presidential electors. And so federal courts, just like state courts, lack authority to order legislatures to appoint electors without regard to the results of an already-completed election.
What is more, the relief that Texas seeks would undermine a foundational premise of our federalist system: the idea that the States are sovereigns, free to govern themselves. The federal government has only those powers that the Constitution gives to it. And nothing in the Constitution empowers courts to issue orders affirmatively directing the States how to exercise their constitutional authority.
Apart from the relief, however, Ohio urges the court to rule on the proper form of managing election rules for federal office:
Although Ohio does not endorse Texas’s proposed relief, it does endorse its call for a ruling on the meaning of the Electors Clause. More precisely, Ohio urges the Court to decide, at the earliest available opportunity, whether state courts and state executive actors violate the Electors Clause when they change the rules by which presidential elections are run. In late October, Justice Alito predicted that the Court’s failure to decide that question in another case had “needlessly created conditions that could lead to serious post-election problems.” Boockvar, 592 U.S. __, slip op. at 1 (Statement of Alito, J.). Unfortunately, he was right. In many States, citizens voted for President under rules created by state judiciaries and state executive actors rather than state legislatures. See, e.g., id., slip op. at 1–2; Moore v. Circosta, 592 U.S. __, slip op. 1–2 (2020) (Gorsuch, J., dissenting from denial of application for injunctive relief); Tex. League of United Latin Am. Citizens v. Hughs, 978 F.3d 136, 151–52 (5th Cir. 2020) (Ho, J., concurring). Because this Court has never decided whether the Electors Clause permits such alterations to the method for choosing presidential electors, Americans are left to wonder whether the process by which they voted for President was consistent with our country’s founding charter. Those doubts will linger, “robbing the winners of” a victory that all Americans will deem legitimate, and “the losers of the peace that comes from a fair defeat.” United States v. Windsor, 570 U.S. 744, 802 (2013) (Scalia, J., dissenting).
Meanwhile, six states have petitioned the court to join Texas in the original complaint. Missouri, which led the amicus brief from 17 states on Texas’ behalf, now leads the new petition seeking to add itself, Louisiana, Arkansas, Mississippi, South Carolina, and Utah to Texas v PA et al. It’s mostly boilerplate, but this part is intriguing, especially given the absence of the other 11 amicus partners:
Fourth, the Intervening States’ interests are not adequately represented by the existing parties in the case. The Intervening States do not doubt that Plaintiff State of Texas will vigorously and effectively litigate this case, but the Attorney General of each individual State is best situated to represent the interests of that State and its People. The requirement for adequacy of representation is “minimal,” Trbovich v. United Mine Workers of America, 404 U.S. 528, 538 n.10 (1972), and the undersigned Attorneys General respectfully submit that they are the most adequate representatives of their respective States. Cf. Commonwealth of Kentucky v. Indiana, 281 U.S. 163, 173 (1930) (“[B]y virtue of the original jurisdiction over controversies between states, [a State] must be deemed to represent all its citizens.”). Moreover, Plaintiff State of Texas has consented to the intervention requested in this Motion, as has counsel for President Trump.
Do the other eleven states think Texas does adequately represent their interests? Or are they just not too interested in attaching themselves so explicitly to Texas’ lawsuit?
Interestingly, at least as of this writing, there do not appear to be any amici briefs supporting the four respondent states [see first update]. Arizona also filed a motion for an amicus brief, but theirs won’t argue for the case in either direction. Instead, they would just urge the court to act quickly and substantially if they choose to take up the case at all. No one so far seems in favor of the one-line dismissal method used in the Kelly Parnell et al v PA case.
We may wait longer than some would like, therefore, to get a decision from the court. It’s at least possible that the court could quickly rule that the remedies in the Texas complaint are out of bounds, but that it might take up the rest of the issue as Ohio suggests. That might be a good idea, but they punted once on this issue with Pennsylvania before the election. Another punt with the remedies mooted might be pretty tempting again.
Stay tuned. Anything could happen after 3 pm ET today.
Update: What I meant to write was that no other states had filed amici briefs supporting the respondents. There is an amicus brief filed on their behalf from Carter Phillips, Stuart Gerson, John Danforth, Christine Todd Whitman, Lowell Weicker et al. They argue against standing of outside states in another state’s election, and therefore the Supreme Court itself has no real jurisdiction:
The Electors Clause and 3 U.S.C. § 5 contradict the Plaintiff’s unprecedented argument that a presidential election dispute is a controversy between two or more states. These provisions contradict Plaintiff’s argument by authorizing each state to delegate by statute the adjudication of all controversies or contests concerning federal presidential election results in that state to that state’s courts. Such statutory delegation to state courts is part of each state legislature’s chosen statutory “manner” for presidential elections as much as are the statutes on, for example, mail-in voting. A state’s chosen “manner” applies “exclusively,” McPherson v. Blacker, 146 U.S. 1, 27 (1892), “absent some other constitutional constraint.” Chiafalo v. Washington, 140 S. Ct. 2316, 2324 (2020) (emphasis added). There is no constitutional constraint against state courts being the trial courts for presidential election disputes. …
Plaintiff’s Motions make a mockery of federalism and separation of powers. It would violate the most fundamental constitutional principles for this Court to serve as the trial court for presidential election disputes.
That would be an attractive exit ramp, if the court was interested in looking for one.
Update: Pennsylvania has filed its response, and it doesn’t mince words. Their summary accuses Texas of a ” seditious abuse of the judicial process,” and says its case is based on a “surreal alternate reality”:
What Texas is doing in this proceeding is to ask this Court to reconsider a mass of baseless claims about problems with the election that have already been considered, and rejected, by this Court and other courts. It attempts to exploit this Court’s sparingly used original jurisdiction to relitigate those matters. But Texas obviously lacks standing to bring such claims, which, in any event, are barred by laches, and are moot, meritless, and dangerous. Texas has not suffered harm simply because it dislikes the result of the election, and nothing in the text, history, or structure of the Constitution supports Texas’s view that it can dictate the manner in which four other states run their elections. Nor is that view grounded in any precedent from this Court. Texas does not seek to have the Court interpret the Constitution, so much as disregard it.
The cascading series of compounding defects in Texas’s filings is only underscored by the surreal alternate reality that those filings attempt to construct. That alternate reality includes an absurd statistical analysis positing that the probability of PresidentElect Biden winning the election was “one in a quadrillion.” Bill of Complaint at 6. Texas’s effort to get this Court to pick the next President has no basis in law or fact. 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.
Other than that, Mrs. Lincoln, how did you like the play?