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Thursday, December 10, 2020

The Texas Lawsuit on the Presidential Election

Here are some questions about the pending litigation:

  1. Should the Supreme Court reject the bill of complaint without explanation, should an explanation be given, or should one or more Justices write an explanation for themselves? This strikes me as a hard issue. There are many people who think that the Court will do something to change the election result. If the Court does not do that and does not explain why, would that not be a problem? I can also see, though, that getting agreement quickly on what to say (in other words, before the Electoral College meets) might be rather difficult. So maybe they should just issue an order and let some subgroup write an explanation for themselves.
  2. Will the three Justices who were appointed by the President feel compelled to explain themselves? I can see advantages to that in confirming the legitimacy of the election. But I can also see why they might want to stay as far away from that as possible (i.e. they'll get a lot of death threats).
  3. What will be the reaction when the Court rejects the lawsuit?

Posted by Gerard Magliocca on December 10, 2020 at 09:19 AM | Permalink

Comments

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The Texas Lawsuit on the Presidential Election

Posted by: pg slot | Jan 12, 2021 10:07:29 PM

John,

The problem with that is that Trump doesn't get to skip the line and go straight to SCOTUS like the states do. His inclusion as a party would obviate original jurisdiction. He has to sue in district court - which he tried, and failed, to do.

Posted by: anon | Dec 13, 2020 10:04:26 PM

One may read analysis of the decision of the Supreme court, here (" Excess of Democracy"):

https://excessofdemocracy.com/blog/2020/12/parsing-the-holdings-in-texas-v-pennsylvania

Posted by: El roam | Dec 13, 2020 3:05:18 PM

Seems any actual "standing" problem could have been solved by adding Trump as a party. What am I missing? (Charitable answers only).

Posted by: John G. Ryan | Dec 12, 2020 11:05:53 AM

Here to the decision itself:

https://www.supremecourt.gov/orders/courtorders/121120zr_p860.pdf

Posted by: El roam | Dec 12, 2020 8:15:46 AM

So, the Supreme court has rejected it. I quote(from NBC,while quoting from the decision):

"Texas has not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections," the court said in a brief unsigned opinion."

Here:


https://www.nbcnews.com/politics/supreme-court/supreme-court-rejects-texas-effort-overturn-election-fatal-blow-trump-n1250883

Posted by: El roam | Dec 12, 2020 8:04:53 AM

I really hope scotus taking seriously about not overlooking the illegal activities of the Democrats because if they aren't I will never trust us voting system again they have managed to piss off half of America and I do believe scotus is better do their job because they won't be trusted anymore either

Posted by: Rhonda Blaski | Dec 12, 2020 1:30:29 AM

I think the States opposing this lawsuit should file a similar one against all the States supporting it. They should make the same claims, supported by the same "proof", and ask for the results of all the Federal Elections in those States (including Congress and the Senate) to be cancelled!

After all, we might as well make this as big a mess as possible.

Besides, who needs the quaint notion that governments derive "their just powers from the CONSENT OF THE GOVERNED"?

It was probably a commie who wrote that anyway. 😈

Posted by: Etaoin Shrdlu | Dec 11, 2020 4:16:42 PM

On what basis do you assert that: "There are many people who think that the Court will do something to change the election result?"

Posted by: p flaherty | Dec 11, 2020 3:59:44 PM

Meanwhile, See here in "Jurist" (and links therein) titled:

"Four states urge US Supreme Court to reject Texas efforts to overturn 2020 election"

Here:

https://www.jurist.org/news/2020/12/four-states-urge-us-supreme-court-to-reject-texas-efforts-to-overturn-2020-election/

Posted by: El roam | Dec 11, 2020 2:13:22 PM

I love how the same people who scream at the tops of their lungs about states rights and no federal interference in states business are now saying its ok for one state to sue another and want the federal govt ( SCOTUS ) to resolve the issue. Stop the madness! You lost.

Posted by: Louis Cella | Dec 11, 2020 1:34:27 PM

WOW!! Never seen so much biased political bullshit in my life! Any of you dumbasses that think there wasn't fraud and don't think a full and thorough investigation is needed should be deported to China. The case has significant merit and should be heard and the motions should be granted. States violated the Constitution in many ways which makes the election results null and void in those states!! Congress must convene on January 6th and select the electors since the states chose to violate the Constitution as well as Federal and state laws concerning the election procedures. If you feel over half the citizens should accept the results of an election that there is absolutely no proof was legal or secure with thousands of sworn affidavits of fraud then you are not an American! An election with no integrity that does not follow the Constitution is not an election and is just a demonstration of obedience by the dictators. I'm hoping for war so the patriotic America loving citizens of this country takes it back from the corrupt anti Americans that pollute this once great country!!!

Posted by: Doug Yang | Dec 11, 2020 1:22:26 PM

"Dismissed. See Luther v. Borden, 48 U.S. 1 (1849); Lujan v. Defenders of Wildlife (90-1424), 504 U.S. 555 (1992)." Seems like a perfectly adequate explanation to me.

Posted by: Paul Gowder | Dec 11, 2020 12:17:12 PM

It is interesting to find someone in the academy who is thinking about such practical questions. One of your colleagues has spent a lot of time talking about how dangerous it is for the president to claim the election was stolen, but I don't remember him having any concern about four years of claims that Russia stole the last election. I doubt his analysis is persuasive to anyone who does not already agree with him.

Do you think it is dangerous to suggest that it is illegitimate or "seditious" to even ask the court for relief? Pennsylvania actually used that word in its brief yesterday.

I remember reading Marshall's biography of George Washington years ago, and being struck by the author's deep, unyielding, and overwhelming rage that so many petitions to the king and parliament resulted in nothing but contempt. Jefferson included some of that in the declaration of independence, but Marshall went into far more detail.

Why are so many going out of their way to create an incentive system where democrats who loot and burn are treated with respect and resulting political change, while republicans who peacefully bring pieces of paper to lawfully established tribunals are treated with ridicule and derision?

It makes so little sense. Particularly when so many on this board depend on the legitimacy of the tribunals for their daily bread.

Posted by: Anonymous | Dec 11, 2020 11:42:48 AM

I agree with the other Joe, noting I'm not familiar with the competitor bit.

Gorsuch has already commented on the state legislature issue so might again.

I have mixed feelings about a response that is more than a one line order. Lyle Deninson the veteran SCOTUS journalist supports something a bit more substantive. One problem here is time restraints to provide much of an answer and one that can agreed upon by everyone.

Posted by: Joe | Dec 11, 2020 11:33:37 AM

Wondering if Texas is going to sue themselves to invalidate their own election since the governor expanded early voting by a week due to COVID.

Posted by: Ken | Dec 11, 2020 11:07:57 AM

The suit serves several purposes: it fundraises, it undermines President Elect Biden, and it undermines the modes used by the states to ensure equal access to the ballot box. Notably Dominion’s competitor has spent a ton of money lobbying for increased share in voter machine use across the country and actually has been shown to have vulnerabilities allowing vote manipulation.

Posted by: Joe | Dec 11, 2020 10:58:32 AM

In Texas, it's the job of the Solicitor General, not the Attorney General, to represent Texas before SCOTUS. The Solicitor General, Kyle Hawkins, doesn't want any part of this lawsuit, and has instructed his deputies not to participate in it, either.
https://www.newsweek.com/texas-solicitor-general-keeps-distance-election-lawsuit-ag-retains-private-firm-1553385

Posted by: Linda Coleman | Dec 11, 2020 10:29:34 AM

What “thegreatdisappointment” misses is trump himself has said this claim of Paxton’s is “the big one” which, if true, warrants the extra attention. Paxton and trump want us to take them at their word, do they not? Or do they want us to think they are lying?

Posted by: Brian | Dec 11, 2020 8:17:53 AM

For a nuisance suit that y'all are sure is going nowhere, y'all sure are wasting a lot of digital ink on it.

Looks Ken Paxton is living rent free inside your heads.

Posted by: thegreatdisappointment | Dec 11, 2020 2:44:02 AM

The intent of the lawsuit also has to be considered. If Trump had won, would we have expected Biden to launch this type of scattershot type of litigation?

My opinion is Trump is a sore loser and is trying to invent nonlegal reasons to try to overturn the election. The courts have consistently indicated the complaints as a whole have not raised any legal issues. For example, here in Michigan, voting by mail was approved by the citizens in 2018, well before Covid-19 occurred. Thus, there is no legal basis and the legal challenge is moot. i expect the same thing is occurring throughout the courts in the United States.

Posted by: Robert Alpiner | Dec 10, 2020 7:58:45 PM


Good question. Yet, there is problem here. If there is legal and factual basis for the lawsuit (even somehow) then, in light of the significant importance, one may expect explanation.

As in the case of Republican Party of Pennsylvania v. Boockvar., Justice Alito, issued the following order, I quote:

Nov 06 2020

Order issued by Justice Alito: All county boards of election are hereby ordered, pending further order of the Court, to comply with the following guidance provided by the Secretary of the Commonwealth on October 28 and November 1, namely, (1) that all ballots received by mail after 8:00 p.m. on November 3 be segregated and kept “in a secure, safe and sealed container separate from other voted ballots,” and (2) that all such ballots, if counted, be counted separately. Pa. Dep’t of State, Pennsylvania Guidance for Mail-in and Absentee Ballots Received From the United States Postal Service After 8:00 p.m. on Tuesday, November 3, 2020 (Oct. 28, 2020); Pa. Dep’t of State, Canvassing Segregated Mail-in and Civilian Absentee Ballots Received by Mail After 8:00 p.m. on Tuesday, November 3, 2020 and Before 5:00 p.m. on Friday, November 6, 2020 (Nov. 1, 2020). Until today, this Court was not informed that the guidance issued on October 28, which had an important bearing on the question whether to order special treatment of the ballots in question, had been modified. The application received today also informs the Court that neither the applicant nor the Secretary has been able to verify that all boards are complying with the Secretary’s guidance, which, it is alleged, is not legally binding on them. I am immediately referring this application to the Conference and direct that any response be filed as soon as possible but in any event no later than 2 p.m. tomorrow, November 7, 2020. "

But, here in Texas, we face a lawsuit, where, irregularities in the election are claimed, but, as rejected in lower courts: no proof, no substantial evidence, nothing almost. So:

Would it be appropriate for the Supreme court, to explain it, while at first place, there is no factual basis for the claims? This seems the real issue .

In the case mentioned above, there was some constitutional basis( for there, the supreme court of Pennsylvania, had amended the state law, due to the pandemic, and delayed the deadline for ballots in mail to be accepted. But, without having any legal provision in the state law. But, by court order).

One may reach the complaint, here:

https://www.texasattorneygeneral.gov/sites/default/files/images/admin/2020/Press/SCOTUSFiling.pdf

And a post in "Excess of Democracy" here:

https://excessofdemocracy.com/blog/2020/12/texas-sued-the-wrong-parties-if-it-wants-to-stop-presidential-electors-votes-from-being-counted

Thanks

Posted by: El roam | Dec 10, 2020 10:46:56 AM

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