Embarrassment the size of Texas

The Electoral College this past Monday elected Joe Biden the 46th president of the United States, thereby fulfilling its role in the storied history of American elections.

Had it been up to Texas, and 17 other states, it wouldn’t have happened. 

The attorney general of Texas, supported by his 17 colleagues, brought suit directly to the U.S. Supreme Court against four states — Georgia, Wisconsin, Michigan and Pennsylvania — for what he claimed were unconstitutional changes to those states’ approved voting procedures in the November general election. 

The U.S. Constitution (Article II, Section 1), in setting forth election procedures, reads: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, . . .” 

Because COVID-19 this year threatened to disrupt elections to some degree, a number of states, including the four “defendant” states noted above, made some changes to their procedures. In some cases the changes were authorized by officials such as secretaries of state, or by state courts.

Texas claimed that since the changes weren’t made directly by the states’ legislatures, they were therefore illegal, and as a consequence their electoral votes should be declared invalid. 

The four “defendant” states represent enough electoral votes to reduce Biden’s margin below the magic “270” majority vote level. Had the suit succeeded, the nation would have faced a constitutional crisis, with no way to determine a legally elected president in time for the required Jan. 20 inauguration ceremony.

The attorney general of Texas is a Republican, of course. So are the 17 attorneys general of the states that joined the Texas suit. And of course the four “defendant” states voted for Biden, the Democratic candidate.

The Supreme Court by a vote of 7-2 dismissed the Texas suit in a very brief opinion. 

Its majority found that Texas had no standing to bring the suit: Texas did not show that it has a legal interest “in the manner in which another state conducts its elections.”

The two dissenting justices, Samuel Alito and Clarence Thomas, thought the court did not have authority simply to reject the filing, but indicated they would not have ruled for Texas on the merits of the case.

The three justices appointed by President Trump were among the seven in the majority.

So the court did not rule on the merits of the argument brought by Texas. Had the justices chosen to take up that issue, the justices might have posed a couple of questions to Texas. 

For one, what about states that made electoral regulation changes in the same manner as the four defendant states, but that voted instead for Donald Trump?

Some of the 17 states that joined Texas in the lawsuit fell into that category.

They made similar changes through their secretaries of state or their courts, but they favored Trump instead of Biden. Why did Texas not include them as defendants? 

A second question would have hit even closer to home. 

Texas altered its voting procedures because of the pandemic, and like Georgia, Wisconsin, Michigan and Pennsylvania, did so through officials other than its legislature. Why did Texas bring a lawsuit to the Supreme Court claiming violations of which itself was “guilty”?

Iowa was not asked to join the Texas lawsuit because Iowa’s attorney general, Tom Miller, is a Democrat and would not have agreed to sign on.

So Iowa was spared the embarrassment of being a party to a suit so summarily dismissed by the nation’s highest court.

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