The state of Texas has filed an unprecedented motion with the U.S. Supreme Court, asking for leave to file a complaint with the court against the states of Pennsylvania, Georgia, Michigan, and Wisconsin over the 2020 presidential election. The motion alleges that changes made in election rules governing absentee ballots in those states by “non-legislative actors” violated the Constitution and “cumulatively preclude knowing who legitimately won the 2020 election and threaten to cloud all future elections.”
In a nutshell, Texas is saying these four states’ elections were unconstitutional—and therefore, invalid. The Lone Star State’s complaint, filed by state Attorney General Ken Paxton, asks that Georgia, Pennsylvania, Michigan, and Wisconsin conduct new elections to determine their electors for the Electoral College.
The motion filed by Texas includes the 41-page complaint and a 35-page brief making the legal arguments for why the Supreme Court should grant approval of the filing of the lawsuit, since Article III, Section 2 of the Constitution gives the Supreme Court—not lower federal courts—original jurisdiction over “controversies between two or more States.”
The complaint goes into great detail describing what happened in each state.
- Pennsylvania: The complaint accuses Pennsylvania Secretary of State Kathy Boockvar of, among other things, “without legislative approval, unilaterally abrogating” Pennsylvania statutes that require “signature verification for absentee or mail-in ballots.” These changes were “not ratified” by the Pennsylvania legislature.
- Georgia: Similarly, the complaint describes how Georgia’s Secretary of State, Brad Raffensperger, also “without legislative approval, unilaterally abrogated Georgia’s statute governing the signature verification process for absentee ballots.”
- Michigan: The complaint states that Michigan Secretary of State Jocelyn Benson “abrogated Michigan election statutes related to absentee ballot applications and signature verification.”
- Wisconsin: Lastly, the Wisconsin’s elections commission made similar changes in state laws without the permission of the legislature that “weakened, or did away with, established security procedures put in place by the Wisconsin legislature to ensure absentee ballot integrity.”
The complaint catalogues these and numerous other changes made in all four states by government officials, not the state legislatures.
According to Texas, these “amendments to States’ duly enacted election laws” violated the Electors Clause of the Constitution, Art. II, § 1, Cl. 2, which vests “state legislatures with plenary authority regarding the appointment of presidential electors.”
In other words, while the state legislatures have the authority to set the rules for presidential elections in their states—and thus could have made all of these changes if they had wanted to—other government officials in those states, including judges, did not have the constitutional authority to make these changes.
Second, the complaint describes how voters in different parts of these states were treated differently. For example, election officials in Philadelphia and Allegheny Counties in Pennsylvania set up a “cure process” for voters in those jurisdictions whose absentee ballots did not comply with state legal requirements. Those noncompliant ballots should have been rejected because state law does not allow such a procedure.
As a result of this behavior and similar behavior in other states, there was “more favorable treatment allotted to votes” in areas “administered by local government under Democrat control.”
This differential treatment, says Texas, violates the Equal Protection Clause of the Fourteenth Amendment. It cites the Supreme Court’s 2000 decisions in Bush v. Gore, which “prohibits the use of differential standards in the treatment and tabulation of ballots within a state.”
Additionally, the one-person, one-vote principle “requires counting valid votes and not counting invalid votes.” This damaged Texas because in “the shared enterprise of the entire nation electing the president and vice president, equal protection violations in one state can and do adversely affect and diminish the weight of votes cast in states that lawfully abide by the election structure set forth in the Constitution.”
Finally, Texas argues that these states violated “substantive due process” requirements because their election practices—through both “intentional failure to follow election law as enacted by” their state legislatures as well as “unauthorized acts by state election officials and their designees in local government”—reached “the point of patent and fundamental unfairness.” The states “acted unconstitutionally to lower their election standards… with the express intent to favor their candidate for president.”
Texas argues that all of these unconstitutional actions changed the outcome of the presidential election, citing the actual vote totals in each state and the number of ballots affected. The state is asking for a declaratory judgement that the administration of the election by Pennsylvania, Georgia, Michigan, and Wisconsin violated the Constitution; that their Electoral College votes cannot be counted; and to order that these states “conduct a special election to appoint presidential electors.”
If the states have already appointed their presidential electors, Texas asks that their legislatures be directed “to appoint a new set of presidential electors in a manner that does not violate the Electors Clause and the Fourteenth Amendment, or to appoint no presidential electors at all.”
This is an unprecedented lawsuit, and the Supreme Court may be extremely leery and disinclined to take any actions regardless of the merits that could upset the results of a presidential election. Texas does a good job of describing what happened in each state and why the actions of government officials making unauthorized, unilateral changes in the rules may have violated the Constitution and affected the outcome of the election.
But by almost any measure, this is the legal equivalent of a Hail Mary pass. While the questions raised are serious ones, it is unlikely that the Supreme Court will address them at this time. As Texas points out, these issues will likely be repeated in future elections. If the Supreme Court does not take up these issues now, they may well have another opportunity in the future.
This piece originally appeared in The Daily Signal