For all of the (many) lawsuits that President Donald Trump and his supporters have filed challenging the 2020 election results, the new winner for hubris and cynicism may be the action that the state of Texas filed directly in the Supreme Court late Monday night, asking the justices to throw out the results in four (but only four) battleground states: Georgia, Michigan, Pennsylvania and Wisconsin. So far, 17 states have filed motions backing the Texas attorney general, and Trump has asked the Supreme Court to let him join the lawsuit, as well.
The new winner for hubris and cynicism may be the action that the state of Texas filed directly in the Supreme Court late Monday night.
Texas is relying on an obscure source of the Supreme Court’s power — its ability to hear disputes between states immediately without having them go through lower courts, known as “original jurisdiction.” But the claim at the heart of the suit has nothing to do with interstate relations — like a border dispute or litigation over water rights. Nor does it have anything to do with fraud. Rather, Texas is arguing that coronavirus-related changes to election rules in each state violate the federal Constitution, never mind that most states (including Texas) made such changes this cycle.
But hypocrisy aside, the suit is also a perfect microcosm for so many of the other cases we’ve seen filed in the past month: It is lacking in actual evidence; it is deeply cynical; it evinces stunning disrespect for both the role of the courts in our constitutional system and of the states in our elections; and it is doomed to fail.
When the drafters of the U.S. Constitution agreed to create a Supreme Court, one of the few points of consensus was that such a tribunal was necessary, at the very least, to resolve disputes between states. After all, neither North Carolina’s nor South Carolina’s state courts could be trusted to fairly resolve a dispute between those two states. And lower federal courts within those states, insofar as Congress chose to create them, might also be subject to localized biases. Thus, the Constitution not only gives the Supreme Court the power to hear interstate disputes; such disputes are one of only two classes of cases Congress can empower the Supreme Court to hear as an “original” matter — without any prior proceedings in a lower court.
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But as the Supreme Court (and the U.S. legal system, more generally) has evolved, the role of these “original” cases has significantly receded. As the court explained in 2010, original suits between states “tax the limited resources of this Court by requiring us ‘awkwardly to play the role of factfinder’ and diverting our attention from our ‘primary responsibility as an appellate tribunal.’” Indeed, even though Congress has given the court exclusive jurisdiction in suits between two or more states (meaning that lower courts may not hear them), the justices still refuse to hear many such disputes, usually because the issues undergirding them can be resolved in other cases in the lower courts involving private parties.
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To take one especially prominent example, when Nebraska and Oklahoma petitioned the court a few years ago to allow it to challenge Colorado’s legalization of marijuana, the court summarily denied its request. More generally, the court has heard arguments in only five such disputes in the last decade — averaging one every other term.
All of that puts into context just how much of a Hail Mary the new Texas suit is compared to the other cases that have been brought thus far. None of the claims Texas is pursuing are incapable of being addressed by the lower courts; they’ve just been rejected by those tribunals. None of the injuries Texas is invoking as justification would be unique to Texas. And the factual allegations Texas makes in its filings are both preposterous on their face and have been soundly discredited by every court that has considered similar allegations to date.
At a more fundamental level, the notion that it is appropriate for one state to sue another because of dissatisfaction with the results of the election in that state is not just offensive; it is belied by at least one prior case in which the court refused exactly that relief. And allowing Texas to bring a suit like this would inevitably open the floodgates — to California suing Texas over its environmental regulations; to New York suing Florida over its Covid-19 response; and so on.
All of this may help to explain why the Texas solicitor general — the state’s leading advocate before the Supreme Court — did not sign onto any of the filings in this new suit. And although the president and his supporters have attempted to make mountains out of procedural molehills (such as the fact that the court “docketed” Texas’ suit — which is not the same as agreeing to hear it), the justices are highly unlikely to be sympathetic. For evidence, look no further than GOP Rep. Mike Kelly’s request to the court to throw out the Pennsylvania election results, which followed the same procedural path until it was summarily denied Tuesday afternoon, over no noted dissents.
The goal may not be success, but rather perpetuating the evidence-less narrative that the election was somehow “stolen” from Trump.
But it’s not enough to explain why this lawsuit is doomed to fail. After all, the goal may not be success, but rather perpetuating the evidenceless narrative that the election was somehow “stolen” from Trump. In that respect, being able to point to irrelevant procedural minutiae as evidence of sympathy for the claim may be victory enough.
And that is why this case, like so many of the others, are so offensively cynical. Knowingly or not, willfully or not, the lawyers filing these actions are co-opting the courts — who have no obvious mechanism for pushing back besides dismissing the suits. They are appropriating the procedural formalities and substantive nuances of judicial review for purely political ends without regard to the results, all of which have been adverse. And in the process, they are showing stunning contempt for the very idea of an independent judiciary — with everyone from the president on down taking the position that, as soon as there are enough Trump-appointed judges on the right court, all of these cases will come out the “right” way, never mind what the law actually has to say about them.
In other words, when (not if) the Supreme Court slams the door on this Texas case, the president’s critics will (once again) claim victory, the president and his defenders will (once again) move the goal posts (to Congress, one suspects) and the collateral damage will be to the institutional reputation of the courts — and the idea that the courts are anything other than another lever to be pulled in partisan political squabbles.