The Texas AG is simply stating that if we claim to be a nation under the rule of law and not under the arbitrary rule of people, then we must abide by the law. The Texas AG is asking the Supreme Court to apply the law per the United States Constitution. The Democrats are arguing that the United States Constitution is and should be secondary to any real or perceived emergency and can and should be altered to accommodate. The Democrats have been arguing for years that the United States is an outdated document and therefore must be construed to be a living document that accommodates their demands and requirements.
This was taken from the Federalist and was written by Margaret Cleveland.
Texas Presents Serious Constitutional Claims
Notwithstanding some branding Texas lawsuit, a “Hail Mary” attempt to block the outcome of the 2020 election, the Lone Star State’s complaint presents serious constitutional issues. Those issues, as Texas puts it, far exceed the electoral irregularities of “the hanging-chad saga of the 2000 election.”
In its Bill of Complaint, filed along with its Motion for Leave, Texas presents three constitutional challenges. Count 1 alleges the defendant states violated the Electors Clause of the Constitution.
The Electors Clause of Article II, Section 1, Clause 2 of the U.S. Constitution provides “[e]ach state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.” As Texas notes, this clause “makes clear that only the legislatures of the States are permitted to determine the rules for appointing presidential electors.”
But, as Texas reveals in its detailed summary of the facts, each of the defendant states, through non-legislative actors, nullified legislatively established election laws in violation of the Electors Clause. For example, several large Wisconsin counties used drop boxes in direct violation of the Wisconsin Election Code that provides detailed procedures by which municipalities may designate sites for the acceptance of absentee ballots. Wisconsin election officials also ignored the statutory certification requirements for absentee ballots, counting votes that the state legislature defined as illegal because they did not include a witness signature and address.
Michigan election officials likewise violated the statutory mandates established by the state legislature, with the secretary of state mass mailing absentee ballots in contravention of state law. And in Wayne County, the home of Detroit’s Democratic stronghold, election officials ignored the state’s signature verification requirement. Georgia also violated the legislature’s requirement for signature verifications, according to Texas’s complaint.
The most egregious violations alleged came from Pennsylvania, where election officials ignored the statutory bar on inspecting ballots before election day, then illegally provided voter information to third parties, and allowed illegal curing of the ballots. Significantly, in Pennsylvania these illegal practices only occurred in Democratic strongholds, with Republicans following the law.
These and other practices, Texas alleges, establish a clear violation of the Electors Clause, because that clause makes clear that it is the state legislature—and not administrative agencies, election officials, or even courts—charged under our constitutional system with selecting electors. (This argument finds support in the three-justice concurrence authored by then-Chief Justice William Rehnquist in Bush v. Gore.) From there, Texas’s Count 1 argues that “electors appointed to Electoral College in violation of the Electors Clause cannot cast constitutionally valid votes for the office of President.”
In Count 2, Texas relied on the same facts, then asserted an Equal Protection claim, premised on the reasoning of the majority opinion in Bush v. Gore. In Bush v. Gore, the Supreme Court held that the Equal Protection Clause of the Constitution is violated when states apply differing standards for judging the legality of votes cast for president.
“The right to vote is protected in more than the initial allocation of the franchise,” the Supreme Court wrote. “Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”
Then, citing its detailed statement of the facts, which highlighted the defendant states’ disparate treatment of voters, Texas argues in Count 2 that “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, in Count 3, Texas asserts a violation of the Due Process Clause of the Constitution. This claim is premised on Texas’s allegation that the election practices of the defendant states in 2020 reached “the point of patent and fundamental unfairness,” thus violating substantive due process.
These three counts, and the detailed facts Texas alleges, make clear that Texas’s beef is not with the states’ election laws, but with the states’ violation of their own election laws, in contravention of the U.S. Constitution.
Texas Is Not Seeking to Overturn the Election—Or Install Trump
These injuries, Texas asserts, demand a remedy. But the remedy sought is not what some may surmise is the goal—a second term for President Trump.
No, what Texas seeks is for the Supreme Court to mandate that the defendant states comply with the Constitution, and that means that electors are selected by the states’ legislatures. Texas makes this point clear, stressing: “Plaintiff State does not ask this Court to decide who won the election; they only ask that the Court enjoin the clear violations of the Electors Clause of the Constitution.”
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