The U.S. Supreme Court has issued a ruling in Texas’ lawsuit challenging election procedures in Pennsylvania, Georgia, Michigan, and Wisconsin. The lawsuit divided the nation, with roughly half the states supporting and opposing the lawsuit, respectively.

The Court just denied Texas’ request to file a Bill of Complaint. Justices Alito and Thomas would have granted it, but denied any additional relief.

Here’s the Order:


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. All other pending motions are dismissed as moot.

Statement of Justice Alito, with whom Justice Thomas joins: In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction. See Arizona v. California, 589 U. S. ___ (Feb. 24, 2020) (Thomas, J., dissenting). I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue.

“Standing” is required to sue because the federal courts can only hear actual cases and controversies, not hypothetical cases. To make a case and controversy, the person filing the lawsuit must have suffered an actual harm, not a merely hypothetical harm (the doctrine of standing can be complicated, but that’s a simple explantation). As to the “standing” problem, here is what Pennsylvania argued in its opposition:

 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….

Article III, Section 2 of the United States Constitution limits the jurisdiction of the federal courts to resolving “cases” and  controversies.” U.S. CONST. art. III, § 2; Raines v. Byrd, 521 U.S. 811, 818 (1997). That same jurisdictional limitation applies to actions sought to be commenced in the Court’s original jurisdiction. Maryland v. Louisiana, 451 U.S. 725, 735-36 (1981). To establish standing, the demanding party must establish a “triad of injury in fact, causation, and redressability.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 103 (1998). More specifically, that the plaintiff has suffered injury to a legally protected interest, which injury is “fairly traceable to the challenged action and redressable by a favorable ruling.” AIRC,
576 U.S. at 800; see also Maryland, 451 U.S. at 736. This Court has “always insisted on strict compliance with this jurisdictional standing requirement.” Raines, 521 U.S. at 819. For invocation of the Court’s original jurisdiction, this burden is even greater: “[t]he threatened invasion of rights must be of serious magnitude and it must be established by clear and convincing evidence.” People of the State of N.Y. v. New Jersey, 256 U.S. 296, 309 (1921). Texas fails to carry this heavy burden.

First, Texas cannot establish it suffered an injury in fact. An injury in fact requires a plaintiff to show the “invasion of a legally protected interest”; that the injury is both “concrete and particularized”; and that the injury is “actual or imminent, not conjectural or hypothetical.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016). According to Texas, the alleged violations of Pennsylvania’s Election Code undermined the authority granted to the Pennsylvania General Assembly under the Electors Clause.8 Motion at 3, 10-11, 13-15. But as the text of the Electors Clause itself makes clear, the injury caused by the alleged usurpation of the General Assembly’s constitutional authority belongs to that institution. AIRC, 576 U.S. at 800 (legislature claimed that it was stripped of its responsibility for redistricting vested in it by the Elections Clause). The State of Texas is not the Pennsylvania General Assembly….

Second, Texas’s claimed injury is not fairly traceable to a violation of the Electors Clause. As discussed above, each of Texas’s allegations of violations of Pennsylvania law has been rejected by state and federal courts.

Third, Texas fares no better in relying on parens patriae for standing. It is settled law that “a State has standing to sue only when its sovereign or quasi-sovereign interests are implicated and it is not merely litigating as a volunteer the personal claims of its citizens.” Pennsylvania, 426 U.S. at 665. The state, thus, must “articulate an interest apart from the interests of particular private parties.” … Texas has no sovereign or quasi-sovereign interest at stake. It is a nominal party, at best.

Here was Texas’ counter-argument on standing:

Voting rights are fundamental, Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886), and the Senate is a body in which Defendant States’ actions threaten Texas’s voting rights. U.S. CONST. art. V, cl. 3 (States’ “equal suffrage in the Senate”). With that standing in
its own right, Texas can assert parens patriae standing for its citizens.2

Although Pennsylvania characterizes this action as a “seditious abuse of the judicial process,” Penn. Br. 2, and ‘uniquely unserious,” id. at 11, Texas seeks to enforce the right that preserves all others in a democratic republic: suffrage. Reynolds v. Sims, 377 U.S. 533, 561-62 (1964). Whatever Pennsylvania’s definition of sedition, moving this Court to cure grave threats to Texas’s right of suffrage in the Senate and its citizens’ rights of suffrage in presidential elections upholds the Constitution, which is the very opposite of sedition.

The potential loss of suffrage rights meets the serious-magnitude test that Pennsylvania poses, Penn. Br. 13, and the purely legal nature of Defendant States’ violations meets its clear-and-convincing test. Id. Michigan suggests that remand to legislatures to reconsider the result of the election would not redress Texas’s injury, Mich. Br. 34-35, but that is not the law. FEC v. Akins, 524 U.S. 11, 25 (1998). Michigan also argues that the remedy would disenfranchise millions of voters, id., but Michigan officials disenfranchised those Michigan voters. Specifically, Michigan admits it cannot segregate the illegal ballots from the legal ones, id. 9, which admits the impossibility of a lawful recount on remand to the Michigan executive. Lutwak v. United States, 344 U.S. 604, 617-18 (1953) (“admissions … are admissible … [as] statements of a party”). Remand to the legislature is the only viable option. Whether the legislature sets a new election or provides some other mechanism to allocate Michigan’s electoral votes is up to the legislature.


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