December 9, 2020 | 11:50 PM ET
Yesterday, Texas Attorney General Ken Paxton filed a lawsuit in the U.S. Supreme Court against four states. The suit asks the Court to block four battleground states — Georgia, Michigan, Pennsylvania, and Wisconsin — from casting “unlawful and constitutionally tainted votes” in the Electoral College.
The suit is a game changer.
Why? Because it presents an opportunity to resolve the election is one fell swoop.
But how, you ask.
Here’s the quick and dirty answer: Texas is saying it played by the Constitution’s elector rules, but the other states did not. In essence, Texas says, “We had a contract and you breached it.” Thus, the Supreme Court doesn’t need to believe that widespread fraud occurred. It only needs to find that the contested states violated the Constitution by changing their rules in an unconstitutional way. If the Court agrees and blocks the electors from those states, then the House of Representatives can decide the winner under the built-in remedy in the 12th Amendment. Since Republicans control a majority of State Delegations in the House, Trump will win the vote and be re-elected.
Ingenious! Liberals won’t admit it, but as they say in Texas, Ken Paxton’s lawyering caught Democrat lawyers “with their drawers down.”
Now, for a slightly more a more in-depth analysis, keep reading.
To begin with, it’s important to understand a few things about the U.S. Supreme Court and Constitution.
In a typical case where you sue, the Supreme Court has tremendous discretion in deciding whether it will hear your case. In most cases, the Court won’t take your case.
But when states sue each other, the rules can be quite different.
Before the formation of our Republic, states were sovereignties — their own little kingdoms. But in the making of ‘These United States,’ states freely gave up some aspects of their sovereignty to become part of our federalist government.
The Framers of the Constitution recognized that states needed a means of resolving their disputes in an evenhanded way that respected each state’s residual sovereignty. So, they wrote Article III, Section 2, Clause 1 of the Constitution.
Under Article III, when states sue one another, the Supreme Court has what is known as both “original” and “exclusive” jurisdiction to hear the case. That means the Court is the only court that can hear the case, and it does not have the same broad discretion to ignore the action as it would if you or I were suing.
To be sure, there are examples where the Court has declined to resolve controversies between the states.
But all of that brings us to the first point why Texas v. Pennsylvania is Trump’s best chance at overturning the election results. Because it’s a suit between two or more states, the Supreme Court will have do something with the case, even if that means dismissing it. So, unlike Sidney Powell’s Kraken suits, the Supreme Court will not be able to simply ignore the Texas lawsuit.
Now to the second point.
This suit gives (at least in comparison to the other cases) the Court an easy out. Texas has given the Court the option to avoid the fraud controversy and resolve the election in one fell swoop.
Let me explain.
The Constitution is many things, one of which is an agreement among the states. In the Constitution, states contractually agreed to abide by specific terms.
Texas says one of those terms was violated in the 2020 election — the Constitution’s ‘Elector Clause.’
Texas asserts that the states agreed in the Constitution that the legislature — and only the legislature — of each state would choose the manner of how presidential electors are chosen. Texas alleges that in the contested states, the executive branch (governor or election officials), not the legislature, rewrote the rules (use of drop boxes, consent decree, massive changes to absentee voting, removal of signature matching, curing of detective ballots, voter status as ‘indefinitely confined,’ etc.) regarding how people could vote.
Texas says these changes by executive fiat violate the Constitution.
Furthermore, Texas argues that in a contested presidential election where not enough electors are constitutionally chosen to elect a president, the 12th Amendment, not the courts, provides the remedy. Texas says the U.S. House of Representatives should decide who is president. If that were to occur, the House of Representatives would vote by House Delegation, and Donald Trump would win another four more years in the White House.
So, how is Texas offering the Court an easy out?
Because Texas is saying it played by the Constitution’s elector rules, but the other states didn’t. Thus, the Supreme Court doesn’t need to believe that fraud occurred. It only needs to find that the contested states violated the Constitution by acquiescing as executive branch officials made wholesale changes to those states’ election rules.
Moreover, Texas is making it easy for the Court by allowing the justices to use the constitutionally prescribed remedy in a contested election. The Court doesn’t have to decide who won, it can kick the election to the people’s representatives to decide, which given the options, seems most democratic.
Now, does that mean the Supreme Court will grant Texas’ request. No, of course not. The Court is free to deny the relief sought and may end up dismissing the case for lack of jurisdiction.
But what you and I witnessed from the Lone Star State yesterday was a brilliant stoke lawyering, and liberal lawyers know it, even though they won’t publicly admit it.
GOD BLESS TEXAS!