SCOTUS Will Smack Down the Texas Election Lawsuit
By: Catherine Jones Payne
Tags: Supreme Court, Donald Trump, Election 2020, Politics, Electoral College

SCOTUS Will Smack Down the Texas Election Lawsuit

Photo by Claire Anderson on Unsplash

As lower courts smack down lawsuit after lawsuit from the Trump team, I’ve been seeing Trump supporters coalesce around a new idea: any minute now, the Supreme Court will ride in to save the day.

Never mind SCOTUS’s terse, nearly immediate rejection on Tuesday of the attempt to block the certification of Biden’s win in Pennsylvania.

I’ve written previously about why we’re not going to see a 5–4 Supreme Court decision that hands the election to Trump. But there’s a new issue at play: Texas has filed a lawsuit attempting to toss the election results in Pennsylvania, Georgia, Michigan, and Wisconsin, by arguing that the supposed election flaws “cumulatively preclude knowing who legitimately won the 2020 election.” The filing offers a number of remedies, including letting the Republican-majority legislatures appoint new electors or just not counting any electors from those states.

In short, Texas is asking the Supreme Court to hand the election to Donald Trump. It’s an unprecedented, audacious gambit.

And it’s not going to work.

In fact, more likely than not, SCOTUS will decide unanimously against Texas.

Courts Aren’t Partisan

The judicial branch isn’t like Congress or the presidency. While judges, like anyone else, have partisan political opinions, those opinions are generally supposed to be irrelevant to how they vote. Instead, we guess at how a judge will vote on a given question based on their judicial philosophy. Some judges are originalists, like Amy Coney Barrett, or textualists, like Neil Gorsuch. Others have a high view of precedent— Elena Kagan comes to mind. Still others, like Sonia Sotomayor, are what some would call legal realists and others might deem proponents of the idea of a “living Constitution.”

We call justices “conservative” or “liberal” based on these philosophies. The justices that get classified as “the conservative wing” are generally originalists or textualists, including Barrett, Thomas, Alito, Kavanaugh, and Gorsuch. Roberts and Kagan are both quite committed to precedent and are the Court’s biggest swing voters. Sotomayor and Breyer are considered liberals for their more flexible, pragmatic approaches that more strongly consider contemporary values.

Sometimes these varying approaches result in 5–4 votes that break down along ideological lines, but the Court values consensus — fewer than 20% of rulings were decided 5–4 between 2000 and 2016, and despite changes in the ideological composition of the Court, only 21% of cases were decided 5–4 in the 2019–2020 term.

Will the Conservative Justices Side with Texas?

It seems quite clear that the justices who are considered liberal or moderate won’t side with Texas — it would require them to disenfranchise the voters of four states, which certainly Kagan, Sotomayor, and Breyer would be loath to do.

But what about the conservative justices?

For guidance here, we can consider how an originalist/textualist framework bears on the central question of the Texas lawsuit. Even if we grant the premise that election irregularities make it impossible to determine who really won Pennsylvania, Georgia, Michigan, and Wisconsin, can one state object to how another state appoints its electors?

From either an originalist or a textualist framework, the answer is clearly no.

The relevant section of the Constitution is Article II, Section I. Here, the Constitution reads: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” The Twelfth Amendment describes how these electors vote for the president. The Constitution does not dictate how states apportion their electors — laws in each state assign electors based on popular vote (in a couple cases, with votes being apportioned partially by the popular vote throughout the state and partially by the popular vote within each congressional district).

But based on the strict wording of the Constitution and what we can infer about the Founders’ original intent, state legislatures have wide latitude in how they appoint electors. They could allocate it based on the votes within their own state. They could allocate it based on the popular vote. The legislature could appoint electors themselves, if they passed such a law (which is not to be construed as the same thing as going rogue and appointing electors themselves if they don’t like the outcome of a given election).

Conceivably, they could flip a coin. They have options.

And nothing in the Constitution suggests that one state gets a say in the manner in which another state appoints its electors. Texas simply has no standing to sue, which is why election law experts have called this lawsuit “laughable.”

We can further deepen our analysis of how the conservative judges will respond to this lawsuit by looking at how they handled lawsuits leading up to the election. The conservative wing consistently declined to second-guess state legislatures, leaving it to the legislatures to decide how to run their elections. Roberts took it a step further, upholding rulings from state courts but smacking down rulings from federal courts. In a ruling shortly before the election, Roberts argued:

“While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes. Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin.”

The Bottom Line

Though their reasons will vary, no justice on the Court has a judicial philosophy that will prove sympathetic to the Texas lawsuit. Not only would the justices have to be willing to disenfranchise the voters of four states, they would also have to be willing to override state legislatures’ constitutional prerogative to choose the manner in which electors are selected.

It’s not going to happen.

Republicans in favor of this lawsuit have proven that they are not actually committed to the Electoral College, that they do not believe, deep down, in the underlying principle that buttresses it: that the United States is a republic of states and that the president is elected by the states, not directly by the people. But they are deluding themselves if they genuinely think that the originalist/textualist judges they worked so hard to see installed will buy such a case.

The Supreme Court will smack down Texas’s lawsuit — and there’s good reason to think that not a single justice will dissent.