We need a constitution that will bend to populist winds so that it will not break.
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.
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.