Thoughts on Texas, et. al. vs. Pennsylvania, et. al.

AP Photo/J. Scott Applewhite

As one is acutely aware here, Texas Attorney General Ken Paxton filed a lawsuit against Pennsylvania, Georgia, Michigan, and Wisconsin- a lawsuit joined by other states now- to prevent those states from casting their votes in favor of Biden in the Electoral College on December 18th.  It has been described as a “Hail Mary pass” lawsuit.  Texas does so since the Supreme Court has jurisdiction in disputes between states.

Original jurisdiction is normally reserved for such things as water rights between the states and jurisdictional boundaries.  For example, the Court ruled in previous cases that the Statue Liberty actually was in the territorial waters of New Jersey, not New York as most people believe.  They also have ruled on water rights disputes between states like New Mexico and Texas.  Most of these rulings are determined after presentation to the Court of an appointed Master who studies the issue and gives their findings in a brief.

However, just this term- in fact. quite recently- the Court heard another case between California and Texas over the Affordable Care Act- an area far outside the accepted concept of original jurisdiction of disputes between the states.  It was done under the understanding that if the determinations by Texas and others was to stand regarding that law, it would cause serious disruptions in the healthcare market.

The point is that if the Court can hear and entertain such a dispute in that instance, there is no reason they cannot hear a dispute regarding the outcome of the 2020 election with respect to results in four states targeted by the Texas Attorney General.

The problem, however, as this writer sees it is twofold.  First, Texas is making the case for disaffected voters in the targeted states who have had their efforts blocked in those states by state courts, elected officials, and unelected election officials.  The Kelly case out of Pennsylvania is instructional.  First, it was instituted not on behalf of the Trump campaign, but basically against the entire state government for altering the rules of the election through mail-in voting in contravention of their own state constitution- the controversy over A-77 in Pennsylvania.  Their state constitution specifies four and only four reasons for absentee voting, yet it appears they de facto adopted statewide no-excuse absentee voting, or universal mail-in voting.

Of course, we know the trajectory of that case.  The Pennsylvania courts shot down the arguments using what has been described as the doctrine of “laches-” namely, Kelly should have brought the lawsuit earlier (before the election) if he thought it violated the state constitution.  However, this is like saying (to this writer) you cannot claim your house was burglarized and you were pistol whipped in the process because you did not call the police when you saw that suspicious guy prowling the neighborhood.  You can rest assured that if Trump had won Pennsylvania, Democrats would have been in court contesting the results based on the same legal arguments as Kelly.

The second problem is bifurcated and “blame” correctly applies to both sides of the equation.  It becomes very obvious to even the most casual observer of the election of 2020 (including many Democrats) that something fishy occurred.  My educated guess is that Democrats saw and exploited weaknesses in the entire electoral system specific to each state.  No grand conspiracy hatched in the bowels of the DNC offices will ever be discovered.  Their is no smoking gun e-mail chain or text messages between officials in the four or six key states that determined their preferred outcome in the election.

The problem is proving it specific to each state.  And in each state, challenges to the outcome have come up against intransigent state courts that refuse to even hear the evidence.  There have been state legislative hearings in Arizona, Michigan and Pennsylvania now that have outlined apparent fraudulent actions, yet where it really counts at this point- the courts- those claims have been dismissed as “hearsay”or not rising to a significant level to alter the outcomes.  Statistical deviations that defy explanation have also been dismissed.  This is like saying there are no such things as expert witnesses in a criminal trial.  In some sense, courts can be excused since they are bound by precedent and ill-prepared to act when the nefarious activity is unprecedented.  In effect, the arguments of Trump were denied their day in court through legalese sleight of hand.

The second part of this bifurcation is the Trump “team” itself.  In 2000, Bush had James Baker leading the charge in Florida and the Supreme Court who had assembled a dream team of election law lawyers.  Trump handed the ball to Rudy Giuliani who may have been great busting organized crime gangs in New York, but who knows little to nothing about election laws that differ from state to state, and especially in the states of interest.  Adding to the drama, others like Lin Wood and Sidney Powell have added their names to the challenges with bombastic statements that, in the end, look like all those Democrat bombshells predicted out of the Mueller probe that never came to pass.

As for the Supreme Court, they read the newspapers and watch the news.  They know infinitely well that should they wade into this controversy absent a “trial record” in the lower courts other than dismissal of suits rubber-stamped by appeals courts, there will be hell to pay one way or the other.  If they were to rule in favor of Texas, the Left will revolt and vice versa if they rule in favor of Pennsylvania, et. al., the Right will revolt.

Texas and others are placing the Supreme Court in a position this writer does not believe they are willing to place themselves.  One state challenging the election laws and procedures in another state would, I believe, strike at the heart of the Elections Clause which grants the states the means by which to determine the manner and time of choosing electors.  At this point I would not be surprised if the Supreme Court echoed the Pennsylvania supreme court in their Kelly decision and said “you should have brought this action sooner.”

It makes the Trump voters no less burglarized or pistol-whipped, but perhaps the cops should have been called when that suspicious prowler showed up in the neighborhood.

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