On Dec. 7, Texas sued Pennsylvania, Michigan, Wisconsin, and Georgia, claiming that the way those states conducted their presidential elections violated Texans’ constitutional rights.
On Dec. 11, the Supreme Court dismissed the case, with Justices Samuel Alito and Clarence 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 doesn’t allow federal courts to accept all disputes. The Constitution grants them jurisdiction only over “Cases and Controversies.” That’s the constitutional term for disputes of the kind Founding-era courts would entertain.
For example, if you sue the IRS in federal court to ask for tax guidance, the court will rule that you don’t 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’s 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.
- 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.”)
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.
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.
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, Dec. 7, only a week before Monday, Dec. 14: the day for electoral college voting.
Contrary to what you may have read or heard elsewhere, the Dec. 14 rule is not a date state legislatures may ignore. It’s effectively a constitutionally authorized deadline for choosing electors. If a state hasn’t appointed electors by Dec. 14, they can’t vote on Dec. 14. If they can’t vote on Dec. 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.