The 3 p.m. deadline for responses to Texas’ Supreme Court lawsuit has passed, and the court docket page still seems to be updating as of this writing.

As predicted yesterday, the nation is split. I summarized the support for Texas in Legal Civil War – 17 States Join Texas Lawsuit In Supreme Court Against PA, GA, MI, and WI.

Pennsylvania, Georgia, Michigan, and Wisconsin have opposed Texas, as have at total of 20 other states, D.C, and two territories in a Brief file by D.C.

The District of Columbia together with the States and territories of California, Colorado, Connecticut, Delaware, Guam, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, U.S. Virgin Islands, and Washington ….

Ohio takes no side, but wants the Court to decide the substantive issue of whether quickly “whether the Electors Clause permits state courts (and state executive officials) to alter the rules by which presidential elections are conducted.” Arizona’s Brief isn’t in the docket yet, but its Motion suggests it’s not taking a side but wants a quick court decision.


106 Republican members of the House filed a Brief in support of Texas. [Update – 126?]


[7 p.m.]

I finally have had a chance to go through some of the opposition briefs. I focus on Pennsylvania’s, as the arguments are pretty typical.

The Preliminary Statement accuses Texas and Trump supporters of seditious conduct:


Since Election Day, State and Federal courts throughout the country have been flooded with frivolous lawsuits aimed at disenfranchising large swaths of voters and undermining the legitimacy of the election. The State of Texas has now added its voice to the cacophony of bogus claims. Texas seeks to invalidate elections in four states for yielding results with which it disagrees. Its request for this Court to exercise its original jurisdiction and then anoint Texas’s preferred candidate for President is legally indefensible and is an afront to principles of constitutional democracy.

What Texas is doing in this proceeding is to ask this Court to reconsider a mass of baseless claims about problems with the election that have already been considered, and rejected, by this Court and other courts. It attempts to exploit this Court’s sparingly used original jurisdiction to relitigate those matters. But Texas obviously lacks standing to bring such claims, which, in any event, are barred by laches, and are moot, meritless, and dangerous. Texas has not suffered harm simply because it dislikes the result of the election, and nothing in the text, history, or structure of the Constitution supports Texas’s view that it can dictate the manner in which four other states run their elections. Nor is that view grounded in any precedent from this Court. Texas does not seek to have the Court interpret the Constitution, so much as disregard it.

The cascading series of compounding defects in Texas’s filings is only underscored by the surreal alternate reality that those filings  ttempt to construct. That alternate reality includes an absurd statistical analysis positing that the probability of PresidentElect Biden winning the election was “one in a quadrillion.” Bill of Complaint at 6. Texas’s effort to get this Court to pick the next President has no basis in law or fact. The Court should not abide this seditious abuse of the judicial process, and should send a clear and unmistakable signal that such abuse must never be replicated.

In the substance of the Brief, first there are the procedural arguments:

PA argues that SCOTUS should not exercise its discretion to accept “original jurisdiction” because core interests of Texas are not at issue, unlike a border or waterway dispute. Rather, the argument goes, Texas is seeking to protect the asserted rights of its citizens, and if SCOTUS expands its jurisdiction in that way, it will open the floodgates to making the rare exercise of SCOTUS original jurisdiction into a trial court for disputes between citizens of states, rather than states themselves.

Next, PA argues that Texas has no standing, because it has suffered no injury in fact; the way in which other states interpret their own laws and own constitutions is not a protected Texas interest. The personal interests of Texas citizens cannot be sued upon by the State of Texas.

Next, the case is moot because the certifications are completed, and the votes have been cast. The Court cannot unring the voting bell, so to speak:

The Court recently recognized the primacy of voters’ reliance interests in Andino v. Middleton, 20A55 (Oct. 5, 2020). There, a South Carolina District Court order (entered on September 18, 2020), enjoined that state’s witness requirement for absentee ballots during the COVID-19 pandemic. On October 5, this Court stayed the District Court’s decision, thus reinstating the witness requirement. Recognizing that South Carolina voters submitted ballots without witnesses in the timeframe between the District Court’s September 18 injunction and this Court’s October 5 stay, however, this Court specified that “any ballots cast before this stay issues and received within two days of this order may not be rejected for failing to comply with the witness requirement.” Andino v. Middleton, 2020 WL 5887393 *1 (U.S. Oct. 5, 2020).

This Court thus acknowledged that voters should not be punished for relying upon the rules in place when they voted. Similar reliance interests here compel this Court to maintain the status quo for Pennsylvania voters at this late juncture. Overturning Pennsylvania’s election results is contrary to any metric of fairness and would do nothing less than deny the fundamental right to vote to millions of Pennsylvania’s citizens.

On substance, PA argues that Texas does not allege a constitutional violation, and the Electors Clause is being improperly invoked for this purpose. The Brief runs through the allegations of election law violations, and argues they have no merit.

The Brief then argues that the standards for injunctive relief are not met:

In its motion Texas asks this Court to issue an injunction, or, alternatively, issue a stay, that would bar Pennsylvania (and three other states) from certifying its election results and from participating in the Electoral College. Motion at 1-2. In making that request, Texas muddles the distinction between a stay and an injunction, as the only conceivable action this Court could take would be to issue an injunction. Texas then proceeds to cite the incorrect standard, ignoring the heightened threshold for issuance of an injunction in an original jurisdiction suit between two states. Texas fails to meet that exceedingly high threshold….

Whatever the standard, Texas cannot meet it. Nothing in the text, history, or structure of the Constitution supports Texas’s view that it can dictate the manner in which four sister States run their elections, and Texas suffered no harm because it dislikes the results in those elections. Further, Texas’s claims are also moot and barred by laches. The predicate for Texas to take action was established well before Election Day, but it waited until now—after all four States have certified their elections—to bring this action. While Texas waited to see the results, millions of voters relied on the settled rules. Those voters should not be punished for not choosing Texas’s preferred candidate, and Texas should not be rewarded for its unreasonable delay in bringing this action….

At bottom, Texas seeks to invoke this Court’s original jurisdiction to achieve the extraordinary relief of disenfranchising all Pennsylvanians who voted and one-tenth of the voters in the entire Nation. Such relief would, of course, be “drastic and unprecedented, disenfranchising a huge swath of the electorate.” Donald J. Trump for President, Inc., 2020 WL 7012522, at *7. In support of such a request, Texas brings to the Court only discredited allegations and conspiracy theories that have no basis in fact. And Texas asks this Court to contort its original jurisdiction jurisprudence in an election where millions of people cast ballots under truly extraordinary circumstances, sometimes risking their very health and safety to do so. Accepting Texas’s view would do violence to the Constitution and the Framers’ vision, and would plunge this Court into “one of the most intensely partisan aspects of American political life.” Rucho v. Common Cause, 139 S. Ct. 2484, 2507 (2019).

[Friday, 11 a.m.]

Texas has filed its Reply Brief.


Defendant States do not seriously address grave issues that Texas raises, choosing to hide behind other court venues and decisions  in which Texas could not participate and to mischaracterize both the relief that Texas seeks and the justification for that relief. An injunction should issue because Defendant States have not—and cannot—defend their actions.

First, as a legal matter, neither Texas nor its citizens have an action in any other court for the relief that Texas seeks here. Moreover, no other court could provide relief as a practical matter. The suggestion that Texas—or anyone else—has an adequate remedy is specious.

Second, Texas does not ask this Court to reelect President Trump, and Texas does not seek to disenfranchise the majority of Defendant States’ voters. To both points, Texas asks this Court to recognize the obvious fact that Defendant States’ maladministration of the 2020 election makes it impossible to know which candidate garnered the majority of lawful votes. The Court’s role is to strike unconstitutional action and remand to the actors that the Constitution and Congress vest with authority for the next step. U.S. CONST. art. II, § 1, cl. 2; 3 U.S.C. § 2. Inaction would disenfranchise as many voters as taking action allegedly would. Moreover, acting decisively will not only put lower courts but also state and local officials on notice that future elections must conform to State election statutes, requiring legislative ratification of any change prior to the election. Far from condemning this and other courts to perpetual litigation, action here will stanch the flood of election-season litigation.

Third, Defendant States’ invocation of laches and standing evinces a cavalier unseriousness about the most cherished right in a democracy—the right to vote. Asserting that Texas does not raise serious issues is telling. Suggesting that Texas should have acted sooner misses the mark—the campaign to eviscerate state statutory ballot integrity provisions took months to plan and carry out yet Texas has had only weeks to detect wrongdoing, look for witnesses  willing to speak, and marshal admissible evidence. Advantage to those who, for whatever reason, sought to destroy ballot integrity protections in the selection of our President.


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