What happens when two parties of a contract disagree? What happens when one party to a compact believes several of the other parties violated the rules of the compact? In both cases the first answer is sue in a competent court of law. That’s exactly what happened when Texas sued Pennsylvania, Georgia, Michigan, and Wisconsin over their handling of the 2020 presidential election. As with so many things these days, it’s the details that matter. So let’s look at the details of this suit.
When I first heard of this case I was excited. It was presented as a state defending itself from the violation of the agreement between the states we call the U.S. Constituiton. Sadly, that excitement quickly turned to disappointment as I read the complaint and the eventual response of the supreme Court.
Jurisdiction
Pursuant to 28 U.S.C. § 1251(a) and this Court’s Rule 17, the State of Texas respectfully seeks leave to file the accompanying Bill of Complaint against the States of Georgia, Michigan, and Wisconsin and the Commonwealth of Pennsylvania (collectively, the “Defendant States”) challenging their administration of the 2020 presidential election.
Texas v. Pennsylvania, Georgia, Michigan, and Wisconsin
The first step in any suit is to determine if the court has the jurisdiction to hear the case. While Attorney General Paxton refers to the United States Code (U.S.C.), the authority to hear the case comes from Article III of the U.S. Constitution.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,…—to Controversies between two or more States;
U.S. Constitution, Article III, Section 2, Clause 1
So the federal judiciary is the proper place for this case to be heard. And since the case is between two or more states, the supreme Court has original jurisdiction, meaning the case doesn’t go to a lower court first.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.
U.S. Constitution, Article III, Section 2, Clause 2
Complaint
Our Country stands at an important crossroads. Either the Constitution matters and must be followed, even when some officials consider it inconvenient or out of date, or it is simply a piece of parchment on display at the National Archives. We ask the Court to choose the former.
Texas v. Pennsylvania, Georgia, Michigan, and Wisconsin
I have said the same thing for years. Either the Constitution means what it says, or it is useless. While this crossroads is not new in our history (look at the Illinois election for presidential electors in 1960), the breadth and scope of what has happened in the 2020 election does appear quite momentous.
Lawful elections are at the heart of our constitutional democracy. The public, and indeed the candidates themselves, have a compelling interest in ensuring that the selection of a President—any President—is legitimate. If that trust is lost, the American Experiment will founder. A dark cloud hangs over the 2020 Presidential election.
Texas v. Pennsylvania, Georgia, Michigan, and Wisconsin
Once again we see a politician and lawyer misidentify our nation as a democracy rather than the republic it is. That aside, it’s a salient point; without lawful elections, no republic can stand. Unless the vast majority of the people believe the election was handled lawfully and fairly, distrust and unrest are the expected outcome. Just look at the last four years with media, pundits, and politicians alike claiming the 2016 election of President Trump was illegitimate. While no evidence produced has survived scrutiny, the unrest, not to mention the time, effort, and money spent on pursuing those claims has impacted this nation greatly. What will happen to this country when it’s not just the politicians and media who do not consider the President legitimate, but a significant percentage of the populace? A dark cloud indeed.
Here is what we know. Using the COVID-19 pandemic as a justification, government officials in the defendant states of Georgia, Michigan, and Wisconsin, and the Commonwealth of Pennsylvania (collectively, “Defendant States”), usurped their legislatures’ authority and unconstitutionally revised their state’s election statutes. They accomplished these statutory revisions through executive fiat or friendly lawsuits, thereby weakening ballot integrity.
Texas v. Pennsylvania, Georgia, Michigan, and Wisconsin
Probably the strongest case AG Paxton could make was that the defendant states violated the Article II, Section 1, Clause 2 of the Constitution of the United States.
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress:
U.S. Constitution, Article II, Section 1, Clause 2
The language is both simple and supposedly binding: The legislature of each state determines the manner of appointing electors. It should not matter whether the actions of these states’ executive or judicial branches strengthened or weakened ballot integrity. It should not matter this was done in response to COVID-19. Why it was done has no bearing on the fact that branches of these states usurped the Constitutionally based authority of their legislatures to determine the manner of appointing electors. Sadly, this strong argument was immediately diluted by the rest of AG Paxton’s argument.
Finally, these same government officials flooded the Defendant States with millions of ballots to be sent through the mails, or placed in drop boxes, with little or no chain of custody and, at the same time, weakened the strongest security measures protecting the integrity of the vote—signature verification and witness requirements
Texas v. Pennsylvania, Georgia, Michigan, and Wisconsin
By changing the focus from the issue of the usurpation of powers, to one of how the election was conducted, AG Paxton made this an argument not about adherence to the compact that is the Constitution, but about who would be President. He further misdirects the attention of the court by focusing on the evidence of potential fraud. Those, however, were not the only issues in this case.
However, 3 U.S.C. § 7 requires that presidential electors be appointed on December 14, 2020. That deadline, however, should not cement a potentially illegitimate election result in the middle of this storm—a storm that is of the Defendant States’ own making by virtue of their own unconstitutional actions.
Texas v. Pennsylvania, Georgia, Michigan, and Wisconsin
AG Paxton then makes two important errors about the Constitution. First, while Congress does have the authority to determine the dates of both when electors are appointed and when they vote, 3 U.S.C. § 7 does not determine the date for appointing electors, neither is December 14th the date set by law. 3 U.S.C. § 1 sets the date for appointing electors as the Tuesday after the first Monday in November (November 3rd in 2020), and 3 U.S.C. § 5 gives the states until six days before the electors vote, set by 3 U.S.C. § 7, to resolve any controversies, (December 8th & 14th respectively in 2020).
This Court is the only forum that can delay the deadline for the appointment of presidential electors under 3 U.S.C. §§ 5, 7.
Texas v. Pennsylvania, Georgia, Michigan, and Wisconsin
Second, and I believe the more fatal mistake AG Paxton made, was to ask the court to delay the voting of the electors. AG Paxton was asking the supreme Court to do exactly what he accused the defendant states of doing: Getting the judicial branch to usurp the power of the legislative. In this case, the setting of the date for the electors to vote.
In a presidential election, “the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States.” Anderson, 460 U.S. at 795. The constitutional failures of Defendant States injure Plaintiff States because “‘the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.’” Bush v. Gore, 531 U.S. 98, 105 (2000) (quoting Reynolds v. Sims, 377 U. S. 533, 555 (1964)) (Bush II). In other words, Plaintiff State is acting to protect the interests of its respective citizens in the fair and constitutional conduct of elections used to appoint presidential electors.
Texas v. Pennsylvania, Georgia, Michigan, and Wisconsin
My disillusionment in this case was completed by the impact AG Paxton claimed for the State of Texas. Once again he focused on the elections rather than the constitutional violation of the manner used to appoint electors. As I read the SCOTUS opinion, I was not surprised either by their dismissal of the case or the reason given.
SCOTUS Opinion
The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.
SCOTUS Order in TEXAS V. PENNSYLVANIA, ET AL.
While I believe every state has an interest in insuring that the other states follow the Constitution in all respects, AG Paxton’s focus on how the defendant states conducted their elections rather than their violation of the Constitution, led the court to this most reasonable opinion. While Justices’ Alito and Thomas believed that the court should have at least heard the case, I believe the die was cast by AG Paxton in his complaint.
Conclusion
I do not know why AG Paxton took the course he did rather than what I believe to be the obvious constitutional issue at hand. He clearly states that parties in the defendant states other than their legislature, interfered with the manner of choosing electors for the presidential election. Instead, he focused on internal irregularities, some of which may have resulted from that illegal interference. As the court noted, what AG Paxton was asking them to do was interfere with the internal elections of other states, something the state of Texas has no legal authority to request. The State of Texas does, however, have an interest in ensuring that all the parties to the Constitution follow it as the supreme law of the land. Even if the court had seen the constitutional issues AG Paxton hid within his voluminous complaints about how these states conducted their election, it could not have given him the remedy he wanted. At best, the court could have found the elections did not meet the requirements of the U.S. Constitution and “ordered” the defendant states to appoint electors based solely on the laws created by their state’s legislatures. If the states could not, or would not, conduct their elections within the requirements of the Constitution, the court could have found those elections spoiled, thereby giving Congress a legal basis with which to reject the appointment of those electors and their votes as being unconstitutional. That would have meant that the 62 electors from those states were not legally appointed, dropping the total number of electors needed to win the Presidency from 270 to 239.
The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed;
U.S. Constitution, Amendment XII (emphasis added)
What does this mean for the republic? Unfortunately, we will never know what would have happened if the court had the opportunity to opine on the merits of a state suing another state for violating the Electors Clause of the Constitution. While that opinion may have had an impact on who will occupy 1600 Pennsylvania Avenue on January 20th, the damage to the republic was done long before Texas filed their suit. No matter who is eventually declared the winner, half of the nation will believe the election was stolen. And regardless of who wins, that half will be correct. The theft was not merely the office of President, but, as AG Paxton put it in his complaint, the loss of trust in our elections means the American experiment in self-government has faltered. And while I am sure we will spend the next four years hearing the blame placed on every member of government someone can think of, the ultimate responsibility for this failure is ours.
And since the preservation of the sacred fire of liberty, and the destiny of the Republican model of Government, are justly considered as deeply, perhaps as finally staked, on the experiment entrusted to the hands of the American people.
George Washington’s First Inaugural Address, 1789
It appears that we have failed in the trust we were given. The most important question now is, what will we do about it? Will we take responsibility for those we hire to represent us in all levels of government? Will we take steps ourselves to remove those who betrayed their oaths to the Constitutions of their states and the United States? Or will we passively watch while our nation burns. For as Alexander Hamilton said:
If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government.
Alexander Hamilton, Federalist #28
