Welcome to Safe Harbor Day, the date on the Electoral College calendar by which all states can guarantee the seating of their electors by ending all state-court challenges to their presidential elections. By the Associated Press’ count, only Wisconsin has yet to meet the deadline, but is expected to do so by today. In what appears to be a last-minute Hail Mary play to forestall the safe-harbor mechanism, the state of Texas has filed suit against Wisconsin in the Supreme Court, as well as Georgia, Michigan, and Pennsylvania, over their electoral practices:
Texas Attorney General Ken Paxton today filed a lawsuit against Georgia, Michigan, Pennsylvania and Wisconsin in the United States Supreme Court. The four states exploited the COVID-19 pandemic to justify ignoring federal and state election laws and unlawfully enacting last-minute changes, thus skewing the results of the 2020 General Election. The battleground states flooded their people with unlawful ballot applications and ballots while ignoring statutory requirements as to how they were received, evaluated and counted.
“Trust in the integrity of our election processes is sacrosanct and binds our citizenry and the States in this Union together. Georgia, Michigan, Pennsylvania and Wisconsin destroyed that trust and compromised the security and integrity of the 2020 election. The states violated statutes enacted by their duly elected legislatures, thereby violating the Constitution. By ignoring both state and federal law, these states have not only tainted the integrity of their own citizens’ vote, but of Texas and every other state that held lawful elections,” said Attorney General Paxton. “Their failure to abide by the rule of law casts a dark shadow of doubt over the outcome of the entire election. We now ask that the Supreme Court step in to correct this egregious error.”
Elections for federal office must comport with federal constitutional standards. For presidential elections, each state must appoint its electors to the electoral college in a manner that complies with the Constitution. The Electors Clause requirement that only state legislatures may set the rules governing the appointment of electors and elections and cannot be delegated to local officials. The majority of the rushed decisions, made by local officials, were not approved by the state legislatures, thereby circumventing the Constitution.
To sum up:
From the bill of complaint: "These flaws cumulatively preclude knowing who legitimately won the 2020 election and threaten to cloud all future elections."
— Ivan Pentchoukov (@IvanPentchoukov) December 8, 2020
Texas claims in its petition that this is a “case or controversy between the states,” which makes the Supreme Court the proper venue. And that’s true enough, but those usually relate to matters of interstate transactions of some sort. Voting laws seem like a highly unusual matter for such a “case or controversy,” as states manage their own elections in their own manner. Texas claims it has suffered a wrong over the disparate impact of those differences in the presidential election, which gives it standing to file the complaint:
With voting, “‘the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.’” Bush II, 531 U.S. at 105 (quoting Reynolds, 377 U.S. at 555). In presidential elections, “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, 795 (1983). Thus, votes in Defendant States affect the votes in Plaintiff State, as set forth in more detail below.
Anderson v Celebrezze does provide an interesting entrée into this kind of action, but it’s tough to see how it holds up as standing for another state to sue. John Anderson sued Ohio over his potential exclusion from the 1980 presidential ballot based on an arguably unfair filing requirement vis-a-vis the deadline for major-party candidates, who get chosen by convention. The Supreme Court noted that federal courts have jurisdiction in the dispute because of the potential impact on “other states,” but it doesn’t have any language granting other states any standing to bring these kinds of suits. (Neither the controlling opinion nor the dissent even mentions standing.) Such suits would have to come from those who suffered a particularized, specific, and redressable injury — the candidate or the voters who couldn’t cast their ballot.
In other words, Anderson makes a good argument for federal courts to hear lawsuits from Team Trump, or even Sidney Powell, assuming she can find others in each state with standing. Similarly, Lance v Coffman (also cited as providing standing) involved four Colorado citizens challenging redistricting in Colorado, not another state or vice versa, and was also about the jurisdiction of federal courts rather than standing of other states. Furthermore, the court held in Lance that federal courts were not a forum for “generalized grievances,” which is a very good description of this lawsuit.
Neither looks like a very good argument that states can sue other states over their election practices, let alone demand the unconstitutional remedy of voiding their elections and having their legislatures appoint new electors. If so, then we would routinely see Alabama suing New York, Kansas suing Colorado, and so on. The Trump campaign would be the most obvious candidate for standing on all three of those issues, or the voters within each state.
So that’s one problem with this complaint, and a rather fundamental one. Here’s another, from University of Texas law prof Steve Vladeck:
Anyway, it takes five votes to grant a motion for leave to file — which isn’t going to happen.
And it’ll take some time. So chalk this up as mostly a stunt — a dangerous, offensive, and wasteful one, but a stunt nonetheless.
— Steve Vladeck (@steve_vladeck) December 8, 2020
Normally, a state would have its Solicitor General represent their claims at the Supreme Court. It seems very unusual to have State AG Ken Paxton taking the helm on this lawsuit instead. No one has mentioned why Hawkins’s name is not listed on the filing, but it’s not unfair to assume that he’s missing because he doesn’t want to participate in the suit.
Why is Paxton pushing the suit? Some are wondering whether it’s a stunt to get on Santa Trump’s nice list at pardon time:
Hmm… pic.twitter.com/2LMhazkJRN
— Christian Vanderbrouk (@UrbanAchievr) December 8, 2020
Karen Townsend wrote about the Paxton case a couple of months ago, and it does look like Paxton has some significant problems on his hands. A pardon will only help if Paxton doesn’t want a political career after his term ends, though; he needs a vindication, not a pardon, if he wants higher office. It may well be that Paxton just wants to get his name in the papers and impress some of Trump’s MAGA base for those future runs at higher office with this lawsuit.
The Supreme Court already has a case it will likely hear regarding Pennsylvania’s rules changes (coming out of the 3-0 loss for Team Trump in the Third District), if just to set a bar for future elections on adhering to previously passed statutes. Team Trump has standing in that case. This Hail Mary by Texas is likely to land about 50 yards short of the goal line.
Update: Our friend Jonathan Adler is less than impressed, except with the copy editing. He also smells a rat:
The cynical among us might view this suit as a craven ploy to divert attention away from the serious corruption allegations that have been made against Texas AG Paxton. https://t.co/bavgerTIzo
— Jonathan H. Adler (@jadler1969) December 8, 2020
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