The state of Texas sued Georgia, Wisconsin, Michigan, and Pennsylvania in the Supreme Court earlier this week to overturn the election. Just read that again. One state sued four others in the highest court in the land because they didn’t like the election results. The suit was filed by Texas Attorney General Ken Paxton, and seventeen other attorneys general have joined the suit. That means AGs from 18 states want to overturn the will of 80 million-plus voters who delivered Joe Biden the presidency.
This would be a horrifying assault on democracy if it wasn’t so deeply and completely stupid.
Now “stupid” is not, per se, a legal classification. But having studied law, I can certainly assure all readers that this case has no legal merit … and it’s stupid. For one, Donald Trump wants to get in on the action, and this after losing over fifty suits about the election because they were not backed by a single shred of evidence. There’s no case here, let alone a winning one. But facts and reality have never stopped Trump and his allies.
And this suit is particularly horrifying. As election law expert Richard Hasen told NPR, “This is a press release masquerading as a lawsuit. … What utter garbage. Dangerous garbage, but garbage.”
The garbage part comes in the legal issues raised by the suit. First, they are going directly to the Supreme Court, which is highly irregular and requires them to exercise something called “original jurisdiction” which is limited to state v. state suits. But this suit is asking them to overturn other states’ elections. The Court, historically, does not weigh in on political issues (meaning issues where there is no actual legal controversy, just disagreements on the policy).
CNN Legal Analyst Elie Honig explained the problems with both of these issues very well on Twitter.
1) The case asks the Supreme Court to exercise “original jurisdiction,” skipping lower courts. The Court rarely does this. The Court *can* exercise this jurisdiction in state v. state disputes, but doesn’t have to.
It takes 5 justices to hear this case, rather than the usual 4.
— Elie Honig (@eliehonig) December 10, 2020
3) The heart of Texas’s claim is that it objects to election procedures used in four other states. This is unconstitutional and would lead to utter insanity.
First, The Constitution specifically gives each state the right to run its elections as it sees fit. Done and done.
— Elie Honig (@eliehonig) December 10, 2020
And yes, what Texas is asking the Supremes to do is blatantly unconstitutional and undemocratic. The suit is asking the Supreme Court to delay the electoral vote in four states. That vote is scheduled for December 14th, four days from now, and the Constitution specifically says all states must choose their electors on the same day.
But more than this, Texas has no right whatsoever to bring this suit! NONE! One state doesn’t get to go running to the Supreme Court because it doesn’t like how another state votes! This is the legal equivalent of a kid running to mom and whining because he doesn’t like that his brother was looking at a bird!
“This case is hopeless. Texas has no right to bring a lawsuit over election procedures in other states,” SCOTUSblog publisher Tom Goldstein told NBC News. And Honig has something to say here too, bringing up the point that if the Supreme Court were to allow this suit (which I’m pretty sure they won’t) it would open to door for utter anarchy.
4) And to allow one state to sue over another state’s processes would lead to absurd results. Any state could sue any other state over the election. NJ could sue Alabama, Alaska, Idaho. Arkansas could sue MA, NY, and CA. It would never end.
The Court won’t countenance that.
— Elie Honig (@eliehonig) December 10, 2020
This suit is dumb and bad but it’s also really scary. Because just the fact that chief legal officers from eighteen states are willing to so blatantly ignore the law, the Constitution, and the will of voters is horrific. They are going to the Supreme Court and asking them to dismantle our democracy, and that should not be okay. Any lawyer filing such a suit should face sanctions for a frivolous suit at least and disbarment at worst.
For years before Trump and his cronies, we talked about fascism and dictatorship like they were distant threats, but they’re not. People are making very real attempts to undo American democracy right before our eyes, supported by the current President, and the thing stopping them from succeeding has only been their own incompetence and idiocy. But we should be matching that with outrage. We have to speak out against these blatant assaults on the rule of law now, because next time, the attacks may come from someone who actually knows what they are doing.
(image: OLIVIER DOULIERY/AFP via Getty Images)
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