So, what was the Texas lawsuit all about?
With one or two exceptions, I haven’t paid very close attention to the lawsuits filed in some states on behalf of President Trump challenging the election results.
A couple of reasons.
First, as a former prosecutor, I’m familiar with what it takes to put together an actual case of conspiracy and fraud. Just in a moderate size county it takes time and talented investigators to develop evidence admissible in a court of law. When the scale is national in scope, 30 days or 60 days or 90 days is never going to be enough time. And beyond that, it’s a sad and often frustrating truism that even the best lawyer may suspect a crime has occurred, hell even know its occurred, and have to accept that the evidence necessary to prove the case is not available or not accessible.
Second, the legal team pressing the issues for President Trump has, and I’m being charitable here, been second rate. Without dwelling too long on the subject, one only has to compare the sweating, often incomprehensible Rudy Giuliani, et. al. to the legal teams in the Gore/Bush case in 2000. Gore was represented by one of one of the most ingenious and reputable lawyers in America, David Boies; while Bush was represented by seasoned Supreme Court litigator Ted Olson. And not to be underestimated, Bush’s efforts were being directed by Bush family consiglieri, James Baker. Mr. Baker, in many people’s view, was among the top five most brilliant political tacticians of the twentieth century. (If such things interest you, I recommend the book, “The Man Who Ran Washington” by Peter Baker and Susan Glasser.)
All that aside, the Texas lawsuit, got my attention. Not because I thought it could necessarily succeed in today’s charged atmosphere at the Supreme Court. Rather because it relied on a little discussed Constitutional provision to get the case before the Supreme Court. And were the
Supreme Court not be able to evade hearing the case, it had the potential to focus the light on another important but seldom discussed constitutional principle concerning the “guarantee clause.” More on that later.
The means Texas sought to use to get the case before the Supreme Court was to invoke the
Court’s “Original Jurisdiction.” Jurisdiction is simply the power/authority to hear and rule on a case. In this context, there are two kinds to be concerned with, Trial and Appellate. For example, the local superior courts are trial courts. They hear evidence, issue rulings, make findings. An appellate court on the other hand, relies on the evidentiary record developed in the trial court and issues opinions in accordance with legal principles, statutory interpretations and case precedents.
95% of the cases before the Supreme court are there on appeal. However, in a limited number of cases, the framers of the Constitution made the Supreme Court the trial court, that is invested it with Original Jurisdiction.
Article III, Section 2, states, “In All cases affecting Ambassadors, other public Minsters and Consuls, and those in which a State shall be a party, the Supreme Court shall have Original Jurisdiction.”
This is a remnant of Federalism. The States, when the union was formed, didn’t exactly trust each other. No way did they want a trial of a dispute between their state and another state to be held in the other state’s courts. Instead they specified the case would be tried in the only national court created by the Constitution, the Supreme Court.
Hence, Texas, joined by a number of other States sued four sister states and invoked the “Original Jurisdiction” of the court to avoid all the folderol of trying a case before a judge on the bottom rung of the judicial ladder and then having to appeal.
The effort mostly failed, though two justices, Alito and Thomas, believe the text of the Constitution is clear that the Supreme Court, had to hear the case. Of course, they were careful to expressly state they were not judging the merits of the case.
The other Justices of the Court relied on a lack of “Standing” to deny Texas its hearing.
Standing is basic to every lawsuit. The Constitution restricts the Jurisdiction of the Supreme Court to an actual “Case and Controversy.” The Court does not render advisory opinions. Standing, meaning the party must have suffered an injury in fact, is vital to the Case or Controversy requirement. It was always going to be a problem for Texas (or other states) to show a direct injury. A vague intellectual or metaphysical injury to unnamed citizens is never enough. For example, in Sierra Club vs. Morton in 1972, the Sierra Club sued to prevent the Mineral King development adjacent to Sequoia National Forest. The Court ruled the Sierra Club lacked standing because it failed to allege its members actually used the Mineral King site. In the Texas case, it was too much of a stretch to argue a direct injury to citizens of Texas by the failure of Pennsylvania and others to follow their own election rules.
Had the Supreme Court actually heard the case, I would have been interested in seeing a little used Constitutional principle invoked. The Guarantee clause.
The guarantee clause, Article IV, Section 4, states:
“The United States shall guarantee to every State in this Union a Republican Form of Government . . . .”
The guarantee clause has been seldom used. Most of the precedent concerns Congress requiring Southern states who had seceded to establish new state constitutions as a condition for readmission to the Union after the Civil War. It also had to be met as a requirement for admission of new states.
And this is related another provision. A second remnant of federalism.
The Constitution vests in the states the power to conduct elections.
Just as the Constitution in Article One section 4 delegates the power to establish the “Time, Places, and Manner of holding elections for Senators and Representatives” to the State Legislatures i.e. “shall be prescribed in each State by the Legislature thereof,” it also, because Presidents are not chosen by Popular vote but rather by the Electoral College, grants to the State Legislatures in Presidential Elections the power to appoint Electors, “in such Manner as the Legislature thereof may direct.”
Therefore, if in these states the Electors are all awarded or apportioned in accordance with the vote of the electorate in a certain manner, it is of questionable constitutionality for an Governor or State Supreme Court to change the manner and time of voting without action of the legislature. To do so means the State no longer is governed by a Republican form of government. And the guarantee clause is violated.
The problem of course is when authorities in those States, use the Covid crisis as an excuse to make new rules, some reasoned, many arbitrary, but none using a legislative process. While the term “Republican” in the guarantee clause is not defined, it no doubt means there must at least be a legislative branch through which laws and rules must pass.
When the target states changed the election rules passed by the state legislatures, did that deny the residents of that particular state, a “republican” form of government? It would make an interesting trial. Especially if conducted directly before the nine justices of the Supreme Court. Now we may never know. At least in an election context.