The U.S. Supreme Court rejection Friday night of the legal Hail Mary pass Texas threw contesting the November presidential election probably ends the last realistic chance President Trump had to block an election victory by former Vice President Joe Biden.
Texas filed a motion Monday asking the Supreme Court for permission to file a lawsuit against Pennsylvania, Georgia, Michigan, and Wisconsin over changes the four states made in their election rules. All four of those states were carried by Biden in the election, but the Trump campaign sought to invalidate those results as improper.
Under procedural rules, a state cannot sue another state directly without first getting the approval of the Supreme Court. That approval was denied by the high court Friday night.
The crux of the proposed lawsuit, which was attached as an exhibit to the motion filed by Texas, claimed that the changes made in election rules by executive branch officials of the four state governments and by judges—largely governing absentee ballots, which increased in volume this year due to the coronavirus pandemic—violated the Electors Clause of the Constitution.
The Electors Clause gives state legislatures—not other state officials—the authority to set the rules governing the selection of electors in a presidential election in their states.
Texas also claimed that Pennsylvania, Georgia, Michigan, and Wisconsin violated the one-person, one-vote standard of the Equal Protection Clause of the 14th Amendment, as applied by the Bush v. Gore decision that decided the 2000 presidential election, because the four states treated voters differently in different parts of the same state.
According to Texas, there was “more favorable treatment allotted to votes” in areas “administered by local government under Democrat control.”
Finally, Texas alleged that the four states violated “substantive due process” requirements because their election practices were fundamentally unfair. The four states “acted unconstitutionally to lower their election standards … with the express intent to favor their candidate for president,” according to Texas. All of these actions, Texas alleged, changed the outcome of the presidential election.
President Trump asked to intervene in the case on the side of Texas. In addition, 17 Republican state attorneys general in states Trump won in the election sided with Texas in asking the Supreme Court to hear the case.
However, the order issued Friday by the Supreme Court in Texas v. Pennsylvania denied the motion by Texas. The very short order said the high court was denying the request to file a complaint “for lack of standing.” Texas, said the court, “has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.”
The doctrine of standing requires you to demonstrate to a court that you have an actual injury in fact. Here, the Supreme Court said that Texas cannot establish that it has a cognizable injury by the way elections were conducted in the four other states.
Texas had argued that because the election of a president is “the shared enterprise of the entire nation,” the violations of the Constitution by the actions of Pennsylvania, Georgia, Michigan, and Wisconsin adversely affected the voters of Texas by diminishing the value of their votes. But the Supreme Court obviously did not buy that argument.
Justice Samuel Alito, joined by Justice Clarence Thomas, appended a statement that would not change the ultimate outcome of denying relief to Texas. Section 2 of Article III of the Constitution says that the Supreme Court has “original jurisdiction” over all “Controversies between two or more states.”
But as noted, the Supreme Court has a rule in which it requires a state to first get permission from the court before one state can sue another state. Alito clearly believes that rule is inconsistent with the Constitution and stated that, in his view, that the Supreme Court does “not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction.”
Most importantly, Alito went on to say that while he would “grant the motion” and allow Texas to file its complaint, he “would not grant other relief.” So Texas would still not get what it wanted even if the lawsuit went ahead.
In essence, this basically clears the way for the meeting of the Electoral College on Monday.
There are still other lawsuits pending in some states, but they have so far been uniformly unsuccessful in changing the outcome of the presidential election. What they have done is highlight the many problems we have throughout our election system that need to be addressed and remedied, certainly before our next federal election.
This piece originally appeared in Fox News on 12/12/20