Friday, December 11, 2020
These violations, mind you, don’t get into the many instances of alleged fraud in these states. They are merely the rampant violations of election laws enacted by the various state legislatures involved. And, at the risk of being repetitious, none of the state officials, agencies, or courts listed above can legally make these changes without legislative consent. In Pennsylvania, it was quite literally illegal to open and count mail-in ballots after Election Day, and no court in the Commonwealth had the authority to change that. In Georgia, it was illegal to relax signature verification rules. In Michigan, it was illegal to “cure” ballots. In Wisconsin, it was illegal to mass deploy drop boxes for absentee ballots.
This is what Paxton, along with the various state officials who have joined Texas v. Pennsylvania, is trying to remedy. It is why 106 GOP members of the House have jointly filed an amicus brief supporting the Texas lawsuit. The Democrat officials of the four battleground states named in the complaint cynically exploited the COVID-19 pandemic in order to inundate the electorate with unlawful ballots while studiously ignoring the statutory requirements concerning how they had to be legally processed, evaluated, and counted. It is not, in other words, the Texas lawsuit that undermines the electorate’s faith in the democratic process. It’s the four defendants.
With all due respect to Professors Hasen and Vladeck, I like the Texas suit, although I would be surprised if it succeeds. State legislatures play a profound and vital role in our constitutional structure. So much so that I think, though I'm pretty much alone in this, that states ought to be able to litigate the Election clause and even the Guarantee Clause in federal courts. And it seems to me justices Thomas and Alito are absolutely correct that SCOTUS has mandatory and not just permissive jurisdiction over cases such as this. So I would say the Court should take the case. I will be very disappointed if they just swat it away with a one line dismissal. My guess is, and it would be the realpolitik thing to do, that they will take the case and then we'll get a cluster of concurrences and dissents that will be impossible to glean any law from, except that Trump loses. But that would be something.