This article first appeared in the December 14, 2020 Epoch Times.
On December 7, Texas sued Pennsylvania, Michigan, Wisconsin, and Georgia, claiming that the way those states conducted their presidential elections violated Texans’ constitutional rights.
On December 11, the Supreme Court dismissed the case, with Justices Alito and Thomas dissenting. This essay explains why the court was forced to dismiss, even though it offered the wrong reason for doing so.
First, though, let me make it clear that I disagree with media claims that the Texas case was entirely without merit. The media relied mostly on law professors for that conclusion, but law professors are not a very good source. The majority are too far to the left politically to be objective. And most can’t assess the viability of current litigation because they have little to no experience practicing law.
So their predictions are frequently wrong. A notorious example arose during the 2012 challenge to Obamacare, which many law professors labeled as “frivolous.” But as it turned out, the challengers won on three of the four issues at stake. And their sole loss was on an issue very few law professors thought would be decisive.
Neither was the Texas case frivolous. It raised important factual issues and crucial questions of constitutional law. But that’s not to say Texas should have won.
Let’s explore the legal thicket step by step.
The biggest hurdle Texas faced was to show the justices that the state had “standing.”
The Constitution does not allow federal courts to accept all disputes. The Constitution grants them jurisdiction only over “Cases and Controversies.” That is the constitutional term for disputes of the kind Founding-era courts would entertain.
For example, if you sue the I.R.S. in federal court to ask for tax guidance, the court will rule that you do not have standing because your filing is a request for legal advice rather than a case or controversy.
In his dissent, Justice Alito argued that the Supreme Court must accept trial jurisdiction when the dispute is between two states. I don’t think that is correct. Whether a matter qualifies as a case or controversy should not depend on whether the plaintiff is a state. It should depend on whether the matter is the kind of dispute Founding-Era courts would accept.
For Texas to have standing, its case would have to comply with three conditions. In lay terms, they are:
- The plaintiff must claim he has suffered, or is about to suffer, injury;
- the plaintiff must claim the defendant has caused, or threatens to cause, the injury; and
- the plaintiff must explain how the court can cure the problem. (This is called “redressibility.”)
I think the second condition was satisfied: If there was injury to Texas, the defendant states’ irresponsible election conduct caused it.
But seven justices concluded that the first condition was missing: There was no injury. They wrote, “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” In other words, any effect on Texas, as a state, from a Biden presidency rather than a Trump presidency is pretty speculative.
But those justices overlooked something: Texas did not sue only as a state. Its opening papers said it was also suing parens patriae.
Parens patriae is Latin for “parent of the country.” It means that the state is not merely suing as an entity, but as the guardian of its people. In this case, Texas sought to protect its citizens’ fundamental right to vote. (Fun fact: Parens patriae was also one of the titles applied to Roman emperors.)
The Supreme Court does not always recognize parens patriae standing. As explained in Maryland v. Louisiana (1981) (pdf), “A State is not permitted to enter a controversy as a nominal party in order to forward the claims of individual citizens . . . But it may act as the representative of its citizens in original [trial] actions where the injury alleged affects the general population of a State in a substantial way.”
In Maryland v. Louisiana, the Supreme Court ruled that the state of Maryland had standing to protect its general population against a discriminatory Louisiana tax. By the same reasoning, Texas should be able to challenge other states’ actions that infringe the voting rights of all adult Texans. In other words, the court should have ruled that Texas could claim injury as parens patriae.
What about the third condition of standing—redressibility? Was the court in a position to cure or prevent the injury? I don’t think so.
The Founders understood that when voting extends over a long period of time, it becomes vulnerable to corruption and intrigue. For that reason, the Constitution’s Same Day Clause (Article II, Section 1, Clause 4) authorizes Congress to fix a uniform “time” for choosing presidential electors and a uniform “day” when all presidential electors cast their ballots.
Congress has passed laws covering both: The dates this year are November 3 for choosing electors and December 14 for voting by electors. (In an earlier column, I explained that some of this year’s polling irregularities arose from ignoring the November 3 date.)
Texas asked the justices to void elector certifications in the defendant states and order their state legislatures to appoint new electors. But Texas did not sue until Monday, December 7, only a week before Monday, December 14: the day for electoral college voting.
Contrary to what you may have read or heard elsewhere, the December 14 rule is not a date state legislatures may ignore. It is effectively a constitutionally-authorized deadline for choosing electors. If a state hasn’t appointed electors by December 14, they can’t vote on December 14. If they can’t vote on December 14, they can’t vote at all.
Simply canceling certification of the defendant states’ 62 electors would not change the ultimate election results. The Constitution requires the winner of the presidential election to get “a majority of the whole number of Electors appointed.” If you take 62 electors out of the Biden column without putting them in the Trump column, Biden still wins with a “majority of the whole number of Electors appointed.”
The only way the court could change the election result would be as follows: (1) the justices would have to hold a factual hearing, (2) they would have to determine what the facts are, (3 they would have to draft and issue an order compelling state legislatures to come back into session, (4) state lawmakers would have to re-assemble, and (5) choose new electors.
All within a week.
Because that was not possible within the time available, the court could not grant the relief Texas sought. Although the court was wrong to say there was no injury, it therefore was right to deny standing.