Texas Wants a Day In the Supreme Court

This week, the state of Texas sued four other states in the U.S. Supreme Court.

States have historically sued each other over issues like water rights or to define exact boundaries after a river shifted its banks or such.

But this lawsuit concerns the 2020 election for President.

And this may be the most important case that the Supreme Court hears (or does not hear) in your lifetime.

That is, if you’re pleased with the outcome of the 2020 election so far — with President-elect Joe Biden — you may be disappointed.

And if you’re not pleased with the outcome — again, with President-elect Joe Biden – you may also be disappointed.

Things should happen fast with this lawsuit. It will resolve one way or another in perhaps a week, or a few weeks at most.

Time is of the essence here. One way or another, somebody is going to be sworn in as President at noon on Jan. 20, 2021. There’s a hard, Constitutional deadline in play.

You ought to understand what’s going on.

Let’s dig in…

The first thing to understand is Civics 101: everyday voters do not elect the U.S. President.

Then again, many Americans don’t study civics in school anymore. They don’t know the basics. And it’s not as if people receive instruction on how to properly run the country from watching television.

The point is, on election day voters merely vote. They cast a ballot and indicate a preference for one candidate or another.

Then under federal and state law, each state appoints electors based on the outcome.

Electors are obliged to vote for the candidate who won the balloting in their state; exceptions being Maine and Nebraska, which allocate electors by Congressional district.

Eventually the electors — in the context of the Electoral College — choose the President.

Yes, the people have a say via voting. But structurally, it’s electors who decide the President.

If electors cannot reach a majority for any candidate, the Presidency is resolved by a vote in the House of Representatives, with each state delegation having one vote. (U.S. Constitution, 12th Amendment, ratified 1804.)

In modern history, every U.S. presidential election has been resolved by the Electoral College.

No one alive today has ever seen a U.S. election go to the House of Representatives. You’d have to go back to 1876, and before that to 1824 to find an election decided in the House.

Which brings us to Dec. 7, 2020, when Texas filed suit against Pennsylvania, Georgia, Michigan and Wisconsin over how the latter ran their presidential election process this year. I’ll get into details in a moment.

This Texas suit comes after a month of President Trump and his reps litigating various aspects of the election in numerous state and federal district courts, with no success.

Now, though, we have something right smack on the table before the Supreme Court. In a legal sense, the election is back in play.

Texas wants to void the process of choosing electors in Pennsylvania, Michigan, Wisconsin and Georgia.

If successful, the Texas action would deny a majority of electoral votes to Biden, and perhaps to Trump as well. This would force the election into the House, where Republican state delegations are a majority. Presumably, they’d collectively vote Republican (but you never know).

Here’s the basis for all of this…

Under the Constitution, states can sue each other – State X vs State Y – in the Supreme Court, without first having to file in a federal district court and go through appeals via circuit courts. The Constitution grants “original jurisdiction” to the Supreme Court over disputes between states (Art. III, Sec 2).

This concept goes back to 1787. Under the Constitution, each of the 13 states agreed to surrender elements of sovereignty towards the larger purpose of forming a federal government. “A Republic, if you can keep it,” as Benjamin Franklin said to Mrs. Powel.

But each state still required a mechanism to assert rights in case of disputes, especially with other states. So the Constitution opens the Supreme Court to such litigation.

Usually in litigation between states — like over water rights — the Supreme Court appoints a special master to gather evidence, review the law and make recommendations for the Justices to review. And usually, time is not an issue.

But with this Texas case, time is critical.

Federal law controls the process and timing of how the Electoral College is assembled, meets and votes.

The Electoral College is supposed to meet and vote on Dec. 14 — next week.

We’ll see…  Because the federal law that sets that date is just a statute.

Texas is making Constitutional claims. It’s citing direct wording from the foundation document.

Procedurally, Texas is asking the Supreme Court to “stay” electoral college matters. That is, place a hold on the Electoral College meeting, in whole, or perhaps a stay on certain delegations from certain states.

Absent a majority of electoral votes for either candidate for President, we’d wind up with the election going to the House.

The only hard date in the Constitution is noon on Jan. 20th of every fourth year, when the term of the previous President expires. (Constitution, 20th Amendment, Section 1, ratified 1933.)

We have seven weeks.

So what is Texas asking the Supreme Court to do?

You can read the pleadings yourself, in excruciating detail. They’re available at the docketing site of the Supreme Court, here.

The Texas complaint is lengthy, but available here.

But I’ve read all the pleadings, so you don’t have to…

In essence, here’s what Texas claims:

  • Generally, every state is responsible for its own elections.
  • The Presidency and Vice Presidency (P/VP), however, are the only two offices in the land that have input from a nationwide pool of voters.
  • In this sense, every state has an interest in the integrity of elections in other states.
  • If a state assigns P/VP electors based on fraudulent outcomes, the effect is to cancel the votes of electors from states that held secure and accurate elections.
  • The assignment of P/VP electors is a unique process of federalism, reserved for selecting who will hold the “executive power” of the nation under the Constitution.
  • Because of the national nature of selecting a P/VP, the security of state elections for the offices is elevated to the level of a federal issue.
  • The four defendant states – Pennsylvania, Michigan, Wisconsin and Georgia — all adopted last-minute changes to voting processes that increased the likelihood of fraud: especially, mail-in voting.
  • These changes were executive, administrative and/or judicial in nature, and not adopted per the “legislature” as defined in the Constitution (Article II, Section 1).

Texas makes a series of legal justifications for all of its claims and seeks a variety of remedies from the Supreme Court.

These remedies include enjoining the four states from submitting electors to the electoral college. Or ordering the states to submit electors only through nomination by their respective legislatures.

Effectively, the Texas lawsuit would toss out Biden electors from Pennsylvania, Michigan, Wisconsin and Georgia.

Perhaps one or all of the legislatures of those states would nominate another slate of electors, but the outcome would not be controlled by the balloting from Nov. 3 or the aftermath of counting.

The Electoral College might (or might not) eventually reach a majority decision for President.

If no majority, then the Presidential race would go to the House.

Texas is making a series of foundational claims here. And if you read the pleadings, you’ll see the extensive documentation and citation to past case law.

And it’s not disenfranchisement to toss out a fraudulent election. Indeed, it’s disenfranchisement for legal voters to be canceled by illegal votes.

Meanwhile, 17 other states filed “amicus” briefs (friend of the court) in the Supreme Court, supporting the Texas litigation.

Missouri took the lead as amicus. Plus Alabama, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah and West Virginia.

And as of the time I write, Arizona has also filed to support Texas.

In the next few days, we may see other states file to support Texas.

(Note: Ohio just filed a motion supporting part of the Texas lawsuit.)

But right now, 19 of 50 states have filed suit in the Supreme Court to argue that something is wrong with the outcome of the 2020 election.

These 18 states endorse the Texas allegations of fraudulent balloting and related legal arguments. They concur with the demand for relief.

Meanwhile, President Trump has filed for leave to intervene personally in the case, based on being the affected candidate for president.

Obviously, per the math, we have more than one-third of the states of the Union in front of the Supreme Court contesting an election. This has never happened before. You are watching history happen.

In terms of geography, half the country has filed suit. The 18 states represent over one-third of the U.S. population. These states represent much of the country’s energy and food production, and about 40% of GDP. All in court.

What will the Supreme Court do? Will the justices tackle this case? Or simply blow it all off and dismiss the actions?

Typically, the American highbrow establishment is disdainful of the Texas lawsuit. It’s an “audacious” effort, headlined the New York Times on Dec. 8.

A day later, the Times called it “far-fetched.”

According to Richard L. Hasen, a law professor at the University of California, Irvine, the state of Texas has filed a “press release masquerading as a lawsuit.”

No one has called the 18 state attorneys general “deplorable” (not yet) but that’s likely only a question of time.

Then again, it helps to determine the merits of a lawsuit by reading the pleadings and reviewing the evidence.

Meanwhile, the four defendant states – Pennsylvania, Michigan, Wisconsin and Georgia — will file reply briefs today (Dec. 10).

The Supreme Court has discretion to accept any case, even one filed as state versus state, under original jurisdiction grounds.

The justices might simply issue a terse, one or two sentence dismissal. No hearing. No argument. No scrub of the merits of the Texas claims, as backed by 18 other states.

Then again, the justices might also determine that saving the Republic is worth a few minutes of their precious time.

Yes, we’ll see…

Right now, it’s clear that many “fishy” things happened on election night. See Sheryl Atkisson’s comprehensive rundown, among many others.

Previously, I discussed the issue of mail-in ballots. I called them the “controlled demolition of U.S. governance.

I’ve seen polls that show 90% of Republicans, and even 30% of Democrats believe that there were election shenanigans.

If Biden becomes President in January, we’re looking at a nationwide sense of letdown across a large element of the population, because fundamental issues of fairness have been swept under the rug.

Even the facts don’t matter anymore. No less than Google/YouTube is already scrubbing videos and articles (aka “censoring”) that question the validity of the outcome. See George Washington University law professor Jonathan Turley’s comments on that, here.

This Texas lawsuit is the last real chance for someone — justices of the Supreme Court, no less — to at least try to preempt a national sense of electoral injustice.

They can read the pleadings. Hear the arguments. Make a decision… Perhaps even say a few words and hold the country together.

When 19 states ask the Supreme Court for a hearing about fraud in a national election, it’s a sign that one hell of a lot of people think something is wrong and they want to have a day in court.

On that note, I rest my case.

That’s all for now… Thank you for subscribing and reading.

Best wishes,

Byron King

Byron King
Managing Editor, Whiskey & Gunpowder

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Byron King

A Harvard-trained geologist and former aide to the United States Chief of Naval Operations, Byron King is our resident gold and mining expert, and we are proud to have him on board as the managing editor of Whiskey & Gunpowder.

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