Texas versus Pennsylvania would have turned the electoral faculty – Regulation & Liberty – the wrong way up
The Electoral College is a specially decentralized process for selecting the President of the United States. Each state can vote for its presidential election as the legislature deems appropriate.
The state of Texas, Texas v Pennsylvania, attempted to improve that system with one goal: to get the Supreme Court to do something to prevent President-elect Joe Biden from taking office.
Texas is getting big
The Supreme Court is originally and exclusively responsible for disputes between two or more states. Other cases usually go through the long court case in a district court, then an appeal (and more than one appeal in some states) before ending up in the Supreme Court, which, in its sole discretion, declines to hear the case. The Court has refused to hear election cases repeatedly this year. Texas tried to short out that process by filing directly with the Supreme Court.
But what does Texas have to do with Pennsylvania? Texas sued four states – Pennsylvania, Georgia, Michigan and Wisconsin – on the grounds that they had introduced inappropriate voting procedures. (Other than that, putting Republican-controlled Georgia second among the defendants was sort of Republican-controlled Texas, though it’s first in alphabetical order so Texas wouldn’t risk the Texas-versus-Georgia case signature.)
Well worth going through a few Texas suggested remedies. Texas called on the court to declare that votes “cast by such presidential electors” are “unconstitutional” and “cannot be counted.” However, the Supreme Court does not count any votes. After the twelfth amendment, Congress counts the votes. If the Court of Justice instructs Congress on what may or may not be counted, it would be a remarkable encroachment on the separation of powers. Even in Bush v. Gore, the Supreme Court never claimed to tell Congress how to count Florida’s votes after the 2000 election.
Texas also called on the court to “direct the legislation of such states” to “appoint a new group of presidential voters” or “not to appoint any presidential electors at all”. Texas called on the Supreme Court to order lawmakers to vote for voters – an even more remarkable encroachment on state power.
Related to this, one of the claims made by Texas was that these states voted for presidential elections, in violation of state lawmakers’ direction. Texas pointed to state court or administrative decisions that violated the state legislature in the election of the presidential election.
Legislative power of the state
A long debate has brewed since Chief Justice William Rehnquist agreed in Bush v. Gore about how much control the legislature had over the presidential election. The constitution empowers the “legislature” of a state to determine the manner in which presidential electors are appointed. All 50 states and the District of Columbia held a referendum to vote for the presidential election.
In 2000, Rehnquist (along with Judges Antonin Scalia and Clarence Thomas) concluded that the Florida Supreme Court “deviated significantly” from the state’s legislative framework for ballot counting in presidential elections and that of the state ” impermissibly distorted “has electoral laws. He explained how the state court formulated new rules and legal remedies during the recount that were not compatible with the state parliament’s scheme.
Rehnquist’s position did not bring a majority in the court. And little litigation has propelled this idea in the past 20 years. This year, however, an important case could advance that concept. In the Republican Party of Pennsylvania v Boockvar, the litigants challenged the Pennsylvania Supreme Court’s decision, citing the state constitution, to extend the deadline for receiving ballots. The decision of the regional court to interpret the state constitution was in direct contradiction to a state law passed by the state parliament.
There is much more to be said about Boockvar when the Supreme Court takes the case. It is a close issue of state legislature in a particular case that would have affected a few thousand ballots.
Compare this to Texas’ claims that four states, from their voting procedures to signature verification requirements, have violated legislature guidelines in their electoral systems, putting millions of votes and questioning the final outcome of those elections posed.
Texas claims include junk statistics, including a “one in a quadrillion” chance of a Biden win in these states, which dilutes any merit those claims may have had. But more egregious than comprehensive 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 from the wrong parties
The Supreme Court quickly threw back the Texas case because of its lack of reputation. Federal courts don’t just hear complaints because someone is asking them to issue an order. A party bringing a lawsuit in court must in fact prove a violation, as Justice Scalia made known in his landmark Lujan v Defenders of Wildlife ruling.
Texas claimed it was hurt when other states selected voters the way they did because it changed the effectiveness of Texan voters in choosing the next President and Vice President of the United States. When these four states confirmed electoral votes for Biden, it undermined the ability of the Texas electoral vote for Donald Trump to successfully select a winner. And because the Vice President presides over the Senate and votes in the event of a tie, Texas (represented by two Senators) also has a special interest in the fair outcome of this election.
Such a theory would turn the very foundation of the electoral college and general election in general on its head. What happens in other states naturally affects who becomes the next president. Of course, it affects the composition of the federal government. Every Senate and House election can change the majority or make the preferred legislation of a state more or less likely. But how can that be a legally recognized violation of a state?
The innovative Texas violation would open a new avenue for violations so that any state could sue any other state directly in the United States Supreme Court for violating its electoral laws. It would be the most breathtaking judicial takeover of elections since Baker v Carr, the forerunner of the “one person, one voice” declaration of justice and the reform of state law across the country.
While the political saga continues elsewhere in the country, the memory of Texas v Pennsylvania can be a reminder that the Supreme Court cannot and will not resolve all of our electoral disputes.
Imagine if New York sued Florida in the Supreme Court after the 2000 election, claiming it was violated as a result of its recounting procedures. Or when California sued Ohio in 2004 for allegedly suppressing voters or irregularities with Diebold voting machines. Such lawsuits are rightly laughed at out of court and viewed as wild interference in state presidential elections.
A weak congress hits
Worse still, 126 members of the House of Representatives filed a brief summons for the Supreme Court to intervene. As mentioned earlier, Congress is responsible for counting the votes. Congress is also responsible for enacting federal laws that enforce suffrage and outline the contours of federal electoral laws.
What is even more egregious, however, is that many of these congressmen also questioned their own legitimacy. The constitution empowers the “legislator” to develop rules for federal congress elections. The presidential election clause and the election clause can best be read together within the framework of their powers and in their distribution of competences to the state parliament.
If legislature power in these four states has been usurped in the way that Texas identifies it, then it has likely been usurped in congressional elections in those states – and perhaps other states as well.
Of course, these members of Congress would never say that their own elections were illegal. Signing the brief became a political act to raise funds or to show loyalty to the losing candidate.
This ended the theater saga before the Supreme Court. It had very little to do with right and very much to do with political drama. It gave members of Congress an inexpensive opportunity to pound their chests and request that the Supreme Court – the Supreme Court – rule the presidential election.
In a tight resolution, the court threw back the case, and no judiciary suggested any interest in offering Texas immediate relief or on the matter. Some judges said Texas had no reputation. Two others said they would not give Texas any relief. It was a fitting ending to a stupid lawsuit. And while the political saga continues elsewhere in the country, the memory of Texas v Pennsylvania can be a reminder that the Supreme Court cannot and will not resolve all of our electoral disputes.