Bypassing all lower courts, the state of Texas is moving directly in the Supreme Court with what may be the boldest constitutional challenge in the history of presidential elections: stop four other states from casting their electoral votes for Joe Biden next Monday.
Texas’s aim emerged clearly in scores of pages of legal documents. It wants the Court to nullify the Biden victories in those states, then shift the choice in those states to Republican-controlled legislatures, or else to push the election into the U.S. House of Representatives, where the GOP is expected to have a majority of the state delegations, each casting one vote on January 6.
Either way, presumably, President Trump would be reelected to a second term.
With the President’s own legal team having lost more than 40 lawsuits in lower courts and, so far, getting no real help in appealing some of those to the Supreme Court, the state of Texas chose the unusual step of suing the states of Pennsylvania, Georgia, Michigan and Wisconsin in the Supreme Court Monday night. Biden won 62 electoral votes in those states on November 3, pushing him well over the minimum 270 he would need to win.
If the votes already officially certified in those states were to be followed in the Electoral College next Monday, Biden could expect to get a total of 306 electoral votes (The College does not meet all together; each state’s electors meet in their own capitals.)
The state of Texas does not want the Court to nullify other states’ electoral votes; just those of the four “swing” states. It accuses Democratic election officials in those states of “rampant lawlessness,” manipulating the balloting “with the express intent to favor their candidate for president and to alter the outcome of the 2020 election.” The basic grievance is that state officials or courts violated state election laws, undercutting laws passed by their legislatures.
Evidence of “illegality in the elections held in those states grows daily,” threatening “the perceived legitimacy” of the winner, Texas contends.
The case relies on the Constitution’s grant of power in Article III to the Supreme Court alone to decide disputes between the states. (Such disputes are known as “Original” cases, because they begin and end in the Supreme Court, rather than being appeals from a state or lower federal court – the most common kind of case before the Justices. “Original” cases usually involve states in disputes over boundaries or rights to river water, not election controversies.)
The Court on Tuesday asked the four states to reply to the Texas complaint by 3 p.m. Thursday. The Justices are expected to consider what to do with the case at a private conference scheduled for Friday morning. Any action might be announced that day, because of the imminence of the Monday date set by Congress for the Electoral College to meet and vote.
“This Court is the only forum that can delay the deadline” for electoral voting, the new complaint argued. Thus, it asked the Court to delay the electoral voting in those states “to allow investigations to be completed” in pursuit of more evidence of the claimed irregularities in counting the November 3 votes.
Texas argues that the way the presidential election was conducted in the four states violated the Constitution in three differing ways: they undercut the power of the legislature to choose how to pick presidential electors by nullifying existing elections laws, they used different standards than were followed in other states thus resulting in inequality in voting rights (contradicting “one-person, one vote” principles), and they violated “due process” by engaging in unfair practices.
Here are the specific actions that Texas asked the Court to take:
First, immediately block the four states from casting electoral votes on Monday, to give the Court time to act on the challenge.
Second, accept the case for decision (the state argues that the Court has no choice but to do so, but that is a disputed point), either to issue a decision swiftly without even holding a hearing or review it on an expedited basis, then rule that already chosen electors have been named unconstitutionally, and forbid the four states from casting any electoral votes until their legislatures have had a chance to take action, including choosing electors by the legislature itself.
Third, forbid electors supposedly chosen in those states to meet pending a ruling by the Court.
Fourth, since the four states already have officially declared a winner of their elections (Biden), direct the state legislatures to appoint new electors in a constitutionally valid way, perhaps by holding a special election.
The Texas challenge would not interfere with the other states casting electoral votes on Monday, but if the four states are forbidden by the Court from doing so, Texas suggests that neither Biden nor Trump will have won enough votes to win, so the outcome might then be shunted to the House of Representatives.
It leaves a bit unclear how the plea for the four states’ legislatures to go forward to pick new electors would fit with the suggestion that the election be decided in the House. Presumably, it expects that the legislatures would have completed their part of the process Texas wants in time for Congress to count the votes on January 6, as is now scheduled. If they have not, and neither Biden nor Trump gets 270 votes on Monday, then the House would vote, state by state, with each state having one vote. Republicans control at least 26, and maybe 27 (after current uncertainty is resolved), of the state delegations so that would give them control.