On Monday, December 14th at approximately 5:30 pm EST, the New York Times reported that Joseph R. Biden, Jr. received enough votes from the electors within the Electoral College to secure the presidency. The Democratic candidate has faced two major hurdles on his way to the White House, the first being verified as the winner through the Electoral College, and the second being Congress’s acceptance of the vote when session resumes on January 6, 2021. While these are just two of the many procedural boxes checked on the path to a transfer of power between presidential administrations, each step has been plagued by allegations of large-scale voting fraud and court cases that have eroded trust in our electoral system.
These allegations, while widely accepted as unfounded on the scale alleged, have been the inspiration for a spate of legal challenges to the election’s procedures, policies, execution, and outcome all across the nation. Perhaps the most compelling of these lawsuits was State of Texas v. Commonwealth of Pennsylvania, State of Georgia, State of Michigan, and State of Wisconsin because it demonstrated clear interstate conflicts. On December 7, 2020, State Attorney General Paxton filed suit on behalf of the State of Texas (whose electoral votes went to Donald J. Trump coincidentally) requesting that the Supreme Court of the United States correct what the State of Texas claimed were “significant and unconstitutional irregularities”. Paxton argued that the Defendants in the case, The Commonwealth of Pennsylvania, State of Georgia, State of Michigan and State of Wisconsin, should be prevented from using the results of the 2020 election to decide the appointment of electors, and instead, conduct special elections to appoint presidential electors.
Since the initial filing, motions and briefs came to the highest court in the land at a torrid pace. On December 9th, President Donald J. Trump’s attorney sought to intervene in the lawsuit, and by December 11th, 126 members of the United States House of Representatives collectively filed for leave to write in support of “ensur[ing] the Electoral College selects the candidate for President of the United States that was chosen by counting only lawful votes”. With three Justices appointed by Donald Trump, the Supreme Court has the power to nullify the popular vote in four states by obtaining signatures from five of the Court’s nine Justices, an opportunity presented by Texas’ lawsuit.
In the usual course, an appearance before the Supreme Court is earned through years of litigation, lower court filings, sleepless nights drafting legal papers, and hours preparing oral arguments. However, Article III, Section II of the Constitution lays out several rare instances where cases can be brought directly to the Supreme Court. One of these exceptions to Court appellate jurisdiction is lawsuits between states. Texas took this opportunity and directly sued several other states to avoid its case having to work through the district and circuit courts. This strategy expedited the judicial process greatly.
However, no great legal drama unfolded. No oral arguments were made. No decisions reserved or deliberations anxiously awaited. Rather, the Court disposed of the suit in just four days after Texas’ initial filing. It argued that Texas did not have standing under Article III of the Constitution to move the Court to file a bill of complaint. As a result, the Court stated that it need not address any of the other motions made by Texas through its Attorney General. However, this decision was not unanimous. Justices Clarence Thomas and Samuel A. Alito, a President George H.W. Bush appointee and President George W. Bush appointee, respectively, dissented from the Court’s denial on standing grounds and wanted to grant Texas the right to file a bill of complaint with the Court. They reasoned that suits between States fell within the Court’s original jurisdiction. Therefore, the Court lacked the discretion to deny Texas’s request to file suit before it.
The Court was presented with a fairly uncommon opportunity to render an opinion on a case using their original jurisdiction. Rather than take the case, the Court used a legal trap door and avoided the issues in the suit all together by stating that Texas had “not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” In short, Texas had not sufficiently justified its presence before the Court by motioning for leave to file a bill of complaint. This decided Texas’ case not on the merits of the accusations within it, but on Texas’ ability to bring the lawsuit at all. As a result, we are left wondering whether the Court will have any other opportunities to weigh in definitively on any of the allegations of voter fraud spurred on by the President and his allies, or if it will remain in the background unwilling to weigh in on such an intensely controversial and politically charged topic that has the ability to change the electoral process for the foreseeable future.
Christopher Becker is a civil litigator practicing in New York. Christopher graduated from the University of Alabama’s School of Law in 2016. There, he was a Senior Editor of the Civil Rights and Civil Liberties Law Review.