On Monday, just before midnight, the State of Texas filed a lawsuit that is far more important than all of the others surrounding the presidential election of November 3rd.
Texas brought a suit against four states that did something they cannot do: they violated the U. S. Constitution in their conduct of the presidential election. And this violation occurred regardless of the amount of election fraud that may have resulted. The four defendant states are Georgia, Michigan, Pennsylvania, and Wisconsin.
Texas filed the suit directly in the Supreme Court. Article III of the Constitution lists a small number of categories of cases in which the Supreme Court has “original jurisdiction.” One of those categories concerns “Controversies between two or more states.” Texas’s suit is exactly that. The Supreme Court has opined in the past that it may decline to accept such cases, at its discretion. But it is incumbent upon the high court to take this case, especially when it presents a such a cut-and-dried question of constitutional law, and when it could indirectly decide who is sworn in as President on January 20, 2021.
The Texas suit is clear, and it presents a compelling case. The four offending states each violated the U. S. Constitution in two ways.
First, they violated the Electors Clause of Article II of the Constitution when executive or judicial officials in the states changed the rules of the election without going through the state legislatures. The Electors Clause requires that each State “shall appoint” its presidential electors “in such Manner as the Legislature thereof may direct.”
In the early years of the Republic, most state legislatures appointed their presidential electors directly, without holding a popular election for President. That would change during the early decades of the nineteenth century. But the constitutional principle remained the same. Regardless of whether a state appoints its electors by a vote in the legislature or by a vote of the people, it is the state legislature — and only the state legislature — that sets the rules.
Thus, when the Pennsylvania Supreme Court extended by three days the deadline for receiving mail-in ballots, contrary to the law passed by the state legislature, the state court changed the rules in violation of the Electors Clause. Similarly, when Georgia’s Secretary of State responded to a lawsuit by entering into a Compromise Settlement Agreement and Release (i.e. a consent decree) with the Democratic Party of Georgia, and modified the signature verification requirements spelled out by Georgia law, that changing of the rules violated the Electors Clause.
The second constitutional violation occurred when individual counties in each of the … (Read more)
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