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Texas v. Pennsylvania Would Have Upended the Electoral College

The Electoral College is a designedly decentralized process for the selection of the President of the United States. Each State may choose its presidential electors in the manner that the legislature deems appropriate.

The State of Texas, in Texas v. Pennsylvania, sought to upend this system in advance of one end: get the Supreme Court to do something, anything, to prevent President-Elect Joe Biden from taking office.

Texas Goes Big

The Supreme Court has original and exclusive jurisdiction over disputes between two or more states. Other cases typically go through the long slog at a district court, then an appeal (and in some states, more than one appeal), before ending at the Supreme Court, which has discretion to decline to hear the case. The Court has declined to hear election cases repeatedly this year. Texas sought to short-circuit that process by filing directly with the Supreme Court.

But what has Texas to do with Pennsylvania? Texas sued four states—Pennsylvania, Georgia, Michigan, and Wisconsin—arguing that they had improper election procedures in place. (As an aside, it was kind of Republican-controlled Texas to put Republican-controlled Georgia as second among the defendants even though it’s first in alphabetical order, lest Texas risk the case caption Texas v. Georgia.)

It’s worth walking through a couple of Texas’s proposed remedies. Texas asked the Court to declare that electoral votes “cast by such presidential electors” “are in violation” of the Constitution and “cannot be counted.” But the Supreme Court doesn’t count electoral votes. Under the Twelfth Amendment, Congress counts electoral votes. For the Court to instruct Congress what can or cannot be counted would be a remarkable intrusion on the separation of powers. Even in Bush v. Gore, the Supreme Court never purported to instruct Congress how to count Florida’s electoral votes after the 2000 election.

Texas also asked the Court to “direct such States’ legislatures” “to appoint a new set of presidential electors” “or to appoint no presidential electors at all.” Texas asked the Supreme Court to order state legislatures to pick electors—an even more remarkable intrusion on state power.

In context, one of Texas’s claims was that these states chose presidential electors in violation of the direction of the state legislature. Texas pointed to state judicial or administrative decisions that contravened the state legislative scheme in choosing presidential electors.

State Legislative Power

There has been a long debate brewing ever since Chief Justice William Rehnquist’s concurring opinion in Bush v. Gore about how much control the legislature has over presidential elections. The Constitution empowers the “legislature” of a state to direct the manner of appointing presidential electors. All 50 states and the District of Columbia held a popular vote for the choice of presidential electors.

In 2000, Rehnquist (joined by Justices Antonin Scalia and Clarence Thomas) concluded that the Florida Supreme Court “significantly departed” from the statutory framework provided by the state legislature in how ballots were to be counted in presidential elections and “impermissibly distorted” the state’s election laws. He explained how the state court fashioned new rules and remedies during the recount, rules inconsistent with the state legislature’s scheme.

Rehnquist’s opinion did not garner a majority of the Court. And little litigation advanced this idea in the last 20 years. This year, however, one major case may advance this concept. In Republican Party of Pennsylvania v. Boockvar, litigants challenged the Pennsylvania Supreme Court’s decision, relying on the state constitution, to extend the deadline by which ballots had to be received. The state court’s decision interpreting the state constitution was in direct conflict with a state statute promulgated by the state legislature.

There is much more to be written about Boockvar if the Supreme Court takes the case. It’s a narrow question of state legislative authority in a particular case that would have affected a few thousand ballots.

Contrast that with Texas’s freewheeling claims that four states, from their absentee ballot procedures to signature verification requirements, all ran afoul of state legislatures’ directives throughout their election systems, casting doubt on millions of votes and the ultimate outcome of these elections.

Texas’s claims include junk statistics, including a “one in a quadrillion” chance of a Biden victory in these states, which dilute any merit these claims might have had. But more egregious than a sweeping legal theory is how Texas thought it could force other states to obey what Texas believed to be the best interpretation of those states’ own laws.

The Wrong Lawsuit by the Wrong Parties

The Supreme Court swiftly threw out Texas’s case because Texas lacked standing. Federal courts don’t just hear grievances because someone asks them to issue an order. A party raising a challenge in court must demonstrate an injury-in-fact, as Justice Scalia famously articulated in his landmark decision Lujan v. Defenders of Wildlife.

Texas alleged that it was injured when other states chose electors in the fashion they did because it altered the effectiveness of Texas’s electors in the choice of the next president and vice president of the United States. When these four states certified electoral votes for Biden, it undermined the ability of Texas’s electoral votes for Donald Trump to succeed in selecting a winner. And because the vice president presides over the Senate and casts a vote in cases of a tie, Texas (represented by two senators) has a particular interest in the appropriate outcome of that election, too.

Such a theory would upend the very foundation of the Electoral College, and of federal elections more generally. Of course what happens in other states affects who becomes the next president. Of course it affects the composition of the federal government. Each Senate and House election can alter the majority or make a state’s preferred legislation more or less likely to occur. But how can that be a legally-recognized injury to a state?

Texas’s innovative injury would open a new avenue of injuries to allow any state to sue any other state, directly in the Supreme Court of the United States, for any breach of its election laws. It would be the most breathtaking judicial takeover of elections since Baker v. Carr, the precursor to the judiciary’s declaration of “one person, one vote” and the remaking of state legislatures around the country.

While the political saga continues in other places around the country, may the memory of Texas v. Pennsylvania be a reminder that the Supreme Court can’t, and won’t, solve all of our election disputes.

Imagine if, in the aftermath of the 2000 election, New York sued Florida in the Supreme Court, alleging injury due to its recount procedures. Or if California sued Ohio in 2004 for allegations of voter suppression or irregularities involving Diebold voting machines. Such suits would rightly be laughed out of court and deemed a wild intrusion on state-run presidential elections.

A Weak Congress Chimes In

Worse, 126 members of the House of Representatives filed a brief urging the Supreme Court to step in. Congress is, as noted earlier, the one responsible for counting electoral votes. Congress is also responsible for enacting federal legislation enforcing the right to vote and providing the contours of federal election laws.

But even more egregious is that many of these members of Congress also called into question their own legitimacy. The Constitution empowers the “legislature” to develop rules for federal congressional elections, too. The Presidential Electors Clause and the Elections Clause are best read together in the scope of their authority and in their allocation of responsibility to the state legislature.

If the legislature’s power was usurped in these four states in the ways Texas identifies, then it likely was usurped in congressional elections in those states, too—and perhaps other states as well.

Of course, these members of Congress would never say their own elections were illegitimate. Signing the brief became a political act, for fundraising or to demonstrate loyalty to the losing candidate.

Thus ended the theatrical saga before the Supreme Court. It had very little to do with law and very much to do with political drama. It offered members of Congress a low cost opportunity to thump their chests and demand that the Supreme Court—the Supreme Court—resolve the presidential election.

In a terse order, the Court tossed the case, and no justice suggested any interest in offering Texas any immediate relief or on the merits. Some justices opined that Texas lacked standing. Two others said that they would not grant Texas any relief. It was a fitting end for a foolish lawsuit. And while the political saga continues in other places around the country, may the memory of Texas v. Pennsylvania be a reminder that the Supreme Court can’t, and won’t, solve all of our election disputes.

Reader Discussion

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on December 21, 2020 at 11:13:48 am

Whoa, Nellie!
Must we suffer another LawProf's one-dimensional, conclusory legal opinion, predictably-dismissive, arguably wrong but never-in-doubt, broad as a river in certitude, shallow as a puddle in analysis? In response to a self-evidently unprecedented national crisis fomented by what was undeniably a systemically-fraudulent, game-changing, presidential election which is strongly contested by credible, unresolved, constitutional objections, L&L trundles out, not a knowledgeable, nationally-regarded constitutional scholar, author, Supreme Court advocate, presidential historian or election law authority, but an academic pundit with a law degree and what would appear (from his unwarranted snark) to be a political purpose, to act out on his very own what he accuses Trump's lawyers of performing, a ''theatrical saga (which has) very little to do with law and very much to do with political drama...,a low cost opportunity to thump... chests."

And, I would add, an easy opportunity for virtue signaling: Whatever Trump is for, whatever anyone who supports Trump is for, however much they are for it, however credibly they advocate on its behalf, then measure for measure, that is the measure of its evil and of the mountain of derision which ought be heaped upon them for espousing it, and of the virtue of those who oppose them.

Enough! The matter deserved political statesmanship, not duck and run, and far better than it got from the moribund Supreme Court, which in its last 75 years as co-morbid co-conspirator with the law schools in a drive toward constitutional morbidity has failed nearly every test of leadership.

L&L's readers warrant much more, too, and it's not for us readers to provide it.

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paladin
on December 21, 2020 at 14:44:05 pm

Yep!
Question:
Did Trump actually join Texas v Pennsylvania. I cannot find Trump listed as one of the plaintiffs. Did he simply file an amicus brief. I thought he sought to "join" the suit? If so, how would our Law guru from little old Iowa address the issues raised when he, like the Court, would be unable to punt and avoid addressing the issues raised.
Clearly, The Trumpster would have standing and clearly there would be a "cognizable judicial interest".
So did he succeed in "joining" or did the Black Robes reject the request knowing that if they did not, they would be unable to "punt"?

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gabe
on December 21, 2020 at 16:58:32 pm

Paladin,

Have you ever been to see a stage magician, and noticed the idle banter while he tries to deflect attention from some maneuver crucial to the illusion? I assume that a lot of this legal analysis and pontificating serves the same purpose. I will accord Professor Muller the benefit of the doubt; he is after all a law professor, and there is nothing unusual about a law professor opining on the merits of a court case, much as there is nothing unusual about an illusionist prattling about the previous night's audience, or traffic on the way to the venue as he nonchalantly tries to move a card hidden in his hand to his breast pocket. But I take your point: interesting (or not) academic minutiae that may in itself be accurate might also serve to distract from much more consequential issues that are otherwise foregone. Among these are:

An objective analysis of the arguments of those who decry criticism of the recent election, and in particular the Supreme Court's view of it suggests a prevalent but concerning attitude. It seems that those such as Chief Justice Roberts and others that dismiss election irregularities embrace a tenuous principle: it is not the integrity of elections that matters at the moment, it is confidence in elections; even if there is rampant cheating, the real damage is not the cheating, but the validation of the idea that there can be cheating. This creates the opportunity for unscrupulous political operatives to create something of a dare: "either you let us cheat or you denigrate the legitimacy of our democratic institutions. You can either look the other way this one time, or validate the idea that there is a much larger problem, that you are not equipped to address." It would appear at least that many of our elites, including politicians, media personalities (at one time referred to by the archaic term "journalist"), the legal academy, etc., think that the actual integrity of elections is simply a means toward an end, and if anyone, such as the State of Texas, raises objections to the actual fairness of these elections, there will be no shortage of people to come up with arguments as to why such objections should not be taken seriously. That these may be specialized, technical arguments such as Professor Muller's does not matter in elite discourse because, even if technically correct and well-reasoned, they are talking about something other than the elephant in the room.

As a second point, discussion of this topic frequently accommodates a specious argument, and that is that the election of Joseph Biden is legitimate because there is "no evidence" to the contrary. This argument is another species of pretending that it is the reputation for fairness, rather than the fairness of elections itself that matters. For the sake of clarity, three arguments should be kept in mind, and should not be used interchangeably. These arguments are:

1. There is no evidence of election irregularities;
2. There is no convincing evidence of election irregularities that would affect the outcome;
3. There is no proof of election irregularities that would affect the outcome.

There are two additional concepts that are of interest to the electorate, if not necessarily to law professors or pundits: tainted election results and invalid election results.

There is in fact evidence of election irregularities. There may be no conclusive evidence of election irregularities, but public opinion does not require proof beyond a reasonable doubt, or even by a preponderance of the evidence. The existence of evidence, even circumstantial evidence such as stopping counting of ballots, large ballot drops in four cities that were determinative, allowing changes in election procedures that disabled safeguards against fraud, ejecting observers from ballot-counting locations, etc., are evidence. The existence of evidence of fraud that could have affected the election outcome, even though not conclusory, taints the election results. The existence of proof of such fraud should invalidate those results. The elites who belittle election skeptics are not entitled to the benefit of the doubt. The argument that Texas's lawsuit is subject to technical criticism is irrelevant to this larger issue. The assumption that law professors will tell us what we need to know, and that ambitious elites know what is best for us is unfounded.

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z9z99
on December 21, 2020 at 21:17:34 pm

Are you saying that with enough public opinion baseless allegations need to be given special treatment? How does one determine if there is enough "public opinion" to change a court's normal evidentiary rules? Moreover, not only does the court of public opinion not have a burden of proof, it does not require proof at all. Some segment of the public will never accept reality. Apparently, the lack of evidence is proof of the conspiracy. Someone must be able to decide that enough is enough. Moreover, evidence of an irregularity is not evidence of fraud, circumstantial or otherwise.

Moreover, some of these alleged irregularities are meaningless. I don't know what you mean by "large ballot drops," but was there a better procedure that would have been satisfactory? Were large cites supposed to have "small ballot drops"? Lack of critical thinking is not an irregularity.

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Non Sequitur II
on December 22, 2020 at 14:38:27 pm

Are you saying that with enough public opinion baseless allegations need to be given special treatment?

No, although Jeff Sessions might disagree with me.

How does one determine if there is enough "public opinion" to change a court's normal evidentiary rules?

I don't know. You might want to ask someone who says it should.

Moreover, not only does the court of public opinion not have a burden of proof, it does not require proof at all. Some segment of the public will never accept reality.

True.

Apparently, the lack of evidence is proof of the conspiracy.

It is? I don't think that makes sense.

Someone must be able to decide that enough is enough.

True. And it seems that those who argue that the Supreme Court is that someone (I am not convinced on this point) can cite you in support.

Moreover, evidence of an irregularity is not evidence of fraud, circumstantial or otherwise.

Yes, evidence of an irregularity is evidence of fraud. It is not necessarily conclusive evidence, it may be rebuttable evidence, it may be weak evidence, it may be evidence of something else, such as incompetence, as well, but it is evidence.

Moreover, some of these alleged irregularities are meaningless.

Maybe. If so there are procedures to establish that assertion that are more reliable than your say-so.

Lack of critical thinking is not an irregularity.

Lack of critical thinking where critical thinking is regularly expected is an irregularity.

For reference, here are the two points from my original post:

There appears to be a train of thought that the reputation of elections for fairness is more important than the their actual fairness. Investigation of irregularities might suggest that elections are unfair, and that would undermine political legitimacy (This might be an end in itself, as is arguably the case regarding the Mueller investigation). As a result, an effort is made to establish the fairness of elections by acclamation. The audience for this effort is the general public, and the general public is under no obligation to accept any particular claim regarding the fairness of elections, one way or the other. If a significant portion of a population views an election as tainted, this affects the attitude toward the resulting government, for good or ill. See what happens when people start questioning the government's authority with respect to COVID lockdowns. The public is not bound by the Federal Rules of Evidence.

The second point is that there is a difference between evidence and proof, and that the two should not be confused. Evidence of significant fraud taints an election. Proof of significant fraud should invalidate an election. Public opinion determines the attitude toward the government and the legitimacy of its policies, and public opinion follows its own rules. For better or worse, public opinion does not require the same standard of proof applicable in a courtroom; see for example O.J. Simpson. The bottom line is that politicians must accommodate and address the skepticism of the public, and not that the public must accommodate the claims of politicians.

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z9z99
on December 21, 2020 at 19:20:34 pm

Paladin, o/t, but want to say thanks for your recent mention of a certain 'coffee table' book, about Venice. Gave a copy of The Venetian Hours of Henry James, Whistler and Sargent (deduced this was the book) as a birthday gift to someone who is a fan of Donna Leon's series, staged in Venice. It was a hit. So, thanks for mentioning it.

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Michael Bond
on December 21, 2020 at 20:39:49 pm

Glad you profited from the reference. Recommending a good book to a worthy beneficiary is almost as rewarding as reading one.
My failure to mention JSS was inexcusable, since he and James are the artists I prefer over Whistler. Can't come to give Whistler the respect due his art and his art for art's sake credo because of his utter stupidity in humiliating himself by suing Ruskin for doing what he was best at, art criticism, and because of Whistler's morbid adult fixation on his mother.

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paladin
on December 21, 2020 at 12:23:05 pm

Weak tea. I occasionally have the sense that L&L and its contributors are more concerned with their standing with National Review types than with any more rigorous, more elevated and more statesmanlike interpretation of the Constitution (and related legislative, executive and judicial actions) within the contretemps and strife we are daily confronted with. There's a pitiable quality to the argument presented herein. A general statement only - it is the very purpose of the law to manage slippery slopes; in varying degree, life, existence in general, is a never ending confrontation with slippery slopes.

Weak kneed, weak minded, weak tea.

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Michael Bond
on December 21, 2020 at 16:17:58 pm

Regarding Texas v. Pennsylvania:

https://www.americanthinker.com/articles/2020/12/a_summary_of_texas_election_lawsuit_.html

h/t Bishop Henry Gracida

“Texas claims that the violations of election law in these States created an environment where ballot fraud was enabled and likely to occur.”

This is a claim that is neutral in regards to “a state agency statement of general applicability and future effect that implements, interprets, or prescribes Law or policy or describes the organization, procedure, or practice of a state agency and includes without limitation the amendment or repeal of a prior rule”, regardless of the political party bring forth evidence of fraud.

All citizens of The United States have standing when it comes to the election for The Executive Office Of The President Of The United States, and thus evidence of fraud must be taken seriously, regardless of the party bringing forth evidence of fraud, least precedent be set that enables fraud, which the evidence reveals, has already taken root, to multiply, which will then, upend the Electoral College.

https://www.theepochtimes.com/trump-campaign-files-supreme-court-challenge-to-overturn-election-results-in-pennsylvania_3626145.html

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N.D.
on December 22, 2020 at 14:32:44 pm

Argue all the technicalities you want, the fact remains that the Court's punt, and a poor one at that, will result in the continuance of abusive and fraudulent election practices or worse. consider this. In Pennsylvania, to date, the ONLY person charged with voter fraud is a Trump supporter:

https://hotair.com/headlines/archives/2020/12/pennsylvania-trump-supporter-charged-voter-fraud/

Selective investigatory practices, not to mention selective prosecutorial discretion.

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gabe
on December 22, 2020 at 15:19:47 pm

I get the assertion that the Supreme Court punted because it feared the impact on election integrity of acknowledging that the Democrats fixed the election. That is a Catch-22: courts must not enforce the laws against lawbreakers because to do so is to admit that there is lawlessness, which would undermine the rule of law. That is circular and defeats the purpose of a rule of law; it is "the king has no clothes" perspective which elevates appearance above substance.

My conclusion is simpler and more in keeping with Roberts' self-perception of his legacy. Roberts has demonstrated his strong desire to protect the public perception that the Court is beyond reproach and non-partisan: "There are no Obama judges; there are no Trump judges." He has also shown that he is easily frightened by political intimidation. Obama openly threatened the Court in the weeks before the Obamacare case was decided, and it is clear that the threat worked, since the Roberts' vote was a last minute switch which caught 4 Justices by surprise, provoking ire in Justice Kennedy's opinion. Recall, also, that last year Senator Chuck You Schumer threatened the Court while demagoguing a mob at the Court's front door. After Barrett was approved Democrats made repeated threats of Court packing if decisions did not go their way. Two Democrat Senators filed an amicus brief which openly threatened the Court if the Louisiana abortion case was wrongly decided. The Court, with Roberts writing the opinion, promptly backtracked on that case and rejected as an undue burden a state restriction which Roberts had previously supported when Texas enacted it. And, of course, the riots of last summer demonstrated the Democrats' capacity to manipulate the mob for political gain.
My conclusion: Roberts is afraid of the Democrats, and he persuaded three "conservatives" of the legitimacy of his fears.

That Roberts is contemptuous of Trump adds another personal incentive for Roberts to punt on election fraud. Recall Roberts' intruding in two significant cases last term to "personalize'' the matter by undertaking take the extraordinary judicial step of evaluating racial animus as a possible motivation for the president's actions on DACA and the census, which were otherwise unquestionably proper exercises of his Article II authority. But personal contempt for Trump is true only of Roberts, not Gorsuch, Kavanaugh and Barrett, as to the Court's failure on election fraud.

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paladin
on December 22, 2020 at 18:08:58 pm

As Professor Muller notes above, "Texas also asked the Court to “direct such States’ legislatures” “to appoint a new set of presidential electors” “or to appoint no presidential electors at all.” As I commented at his blog, the silliness in this requested remedy is that if the states were to actually be enjoined from appointing electors while the Court mulls the merits, Biden/Harris would still win. If December 14th came and went without any electors voting in these states, not only would the Democratic ticket's tally be reduced by 62 electoral votes, but the total number of electors would be reduced by the same amount, thus the Democratic ticket would have (absent faithless electors) 244 votes out of a total of 476, of which a bare majority is 239, thus Biden/Harris would still win. Seems like this part wasn't fully thought through.

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Kristopher Fecteau
on December 23, 2020 at 12:06:32 pm

Paladin:

Absotively on all points.
"My conclusion is simpler and more in keeping with Roberts' self-perception of his legacy. Roberts has demonstrated his strong desire to protect the public perception that the Court is beyond reproach and non-partisan"

I have repeatedly voiced such a concern. However, I go further and assert that Robert's edification project for SCOTUS has not only failed but has effected it's opposite. Robert's "non-partisan" machinations have succeeded in bringing the court into disrepute amongst an ever growing segment of the population which now views the Court as readily influenced by political considerations, unable or unwilling to "Do the Law" for fear of offending some partisan interest and is prepared, either wittingly or unwittingly to permit the erosion of the electoral franchise, the gradual attenuation of religious liberty, conscience and speech AND deny basic biology.
Selective judicial (read: political) determinations, as carefully construed and "balanced" as Roberts may believe them to be is perceived by the citizenry as anything but non-partisan and reeks of Judicial self aggrandizement.
This is the effect of Roberts "balancing test(s)" (pardon the poor pun).

In any event, let us all, here at LLB and elsewhere
ENJOY A VERY MERRY CHRISTMAS!!!!
(Although I suspect that if we are to remain free from government suspicion, we may wish to re-title our celebrations "Saturnalia", so as not to offend the heathens, or "Festivus" so as not to offend the atheists amongst us.

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gabe
on December 28, 2020 at 19:39:20 pm

You are doubtless acquainted with the Kung Pao Buckaroo Holiday?
https://www.youtube.com/watch?v=SXjYIs2Mr5U

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nobody.really

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