Friends
In the legal world it’s called “venue shopping”. If someone’s going to sue, they look for a Court that would be most likely to favor – them. In a local dispute, it might be to manipulate the Court schedule so that a “favorable” judge decides the case. Or, if the question could be settled in State or Federal Courts, the Court with the set of laws that most favors their case.
It’s kind of like Major League Baseball. In the National League, pitchers take their turn at bat every inning. If the manager wants a better hitter in the pitcher’s slot, then he’s got to change pitchers. In the American League, there’s a designated hitter that bats for the pitcher, no change required. If you’ve got pitchers who can hit, National League rules are better. If not, the American League rules are better.
Donald Trump and his supporters have gone to Court over fifty times since the November 3rd election,. They tried in one way or another to change the results of the vote count. Trump has lost over thirty times, with several cases still in legal “limbo”. They won one case, in Pennsylvania. It required that Trump observers be allowed as close as six feet from the vote counters instead of ten.
Evidence
But what the President and some of his followers believe, is that if they can get their case to the United States Supreme Court, they can win. It’s the venue where they actually have had the most success. He won on the Muslim ban (eventually), on the border wall, and on several other issues where “lower” courts ruled against him. And, as far as “judges” are concerned, Donald Trump believes as least three of those Justices “owe” him. He appointed them, and in the “quid pro quo” world of Trump, that means they should rule for him.
The US Supreme Court let the President down yesterday, refusing to take an appeal on the Pennsylvania case to invalidate the voting results. The Court had no comment, just a 9-0 refusal to hear the case. But that case was on appeal from a lower court, with all of the evidentiary decisions already made.
Mr. Trump and his supporters, including several members of Congress, claim that if they could only get their “evidence” in front of the Supreme Court, then the Court would be “required” to overturn the election results that went for Biden. They want the Supreme Court to order those states to ignore the “tainted” results, and appoint Trump Electors to the Electoral College. And Trump has his “quid pro quo” with Justices Bennett, Kavanaugh, and Gorsuch. It would only take two more.
Jurisdiction 101
A little reminder from high school American Government class here. There are two ways that a Court hears cases. The first is “original jurisdiction” That’s when a Court hears the case for the first time and determines both the facts (evidence) of the case, and how the law applies to that case. After the original court, the facts are “settled” either by a jury or the judge. If a case is appealed to a “higher” court, it is appealed based on whether the law was applied correctly or not. Those higher courts have “appellate” jurisdiction, determining the law, not the facts.
The Supreme Court almost always has “appellate” jurisdiction. But there are Constitutional exceptions where the Court could step in and take “original” jurisdiction. Article III, Section 2, Paragraph 2 of the US Constitution states:
“In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction.”
So if only a State would sue, and particularly if a State would sue another State. Then that case might have a clear path to “original jurisdiction” in front of the US Supreme Court. They could present the “mountains” of evidence that all of the other Courts, both Federal and State, have rejected out of hand. The President could “make his case” to the “friendliest” Court he knows.
The Lone Ranger
Enter Ken Paxton, the Attorney General for the State of Texas. In a 128 page brief to the Supreme Court in the name of the state of Texas, General Paxton claims that the voting process in Pennsylvania, Georgia, Michigan and Wisconsin violates the due process rights of the citizens of Texas. How did they do that? Paxton claims those states counted votes in ways that, even though their own state courts approved, violate their own state laws.
That’s right – the State of Texas has determined that Pennsylvania, Georgia, Michigan and Wisconsin don’t know how to judge their own laws. And since they don’t, they’ve allowed an election where the “wrong” candidate won, not the candidate that Texas chose. But General Paxton knows how their laws should be judged, and he wants the Supreme Court to take the case directly on original jurisdiction, to present the evidence and prove it.
And what remedy does the great state of Texas suggest? From the Texas suit:
“The Court should grant leave to file the complaint and, ultimately, enjoin the use of unlawful election results without review and ratification by the Defendant States’ legislatures and remand to the Defendant States’ respective legislatures to appoint Presidential Electors in a manner consistent with the Electors Clause…”
Or, in plain English, throw out the results of the vote count, and require the state legislatures of Pennsylvania, Georgia, Michigan and Wisconsin to choose electors for the Electoral College. It shouldn’t be a surprise that all four of those states have Republican controlled legislatures.
Experts Agree
This is an act of desperation. Can’t we imagine the proud Texas response if those other states demanded that the Lone Star state to throw out their election results? Almost every “Supreme Court Expert” agrees that this lawsuit is “dead on arrival”. But it’s the era of Trump: we’ve learned to our dismay that the word “impossible” doesn’t apply. Don’t expect the Supreme Court to hear this case – but don’t be overly “shocked” if they decide to give Texas a “fair hearing”. After all, there are twenty-two days left in 2020.
Update 12/11/2020
- USSC ORDER REGARDING THE TEXAS COMPLAINT
- 155, ORIG.
FRIDAY, DECEMBER 11, 2020
ORDER IN PENDING CASE
TEXAS V. PENNSYLVANIA, ET AL.
The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.
Statement of Justice Alito, with whom Justice Thomas joins: In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction. See Arizona v. California, 589 U. S. ___
(Feb. 24, 2020) (Thomas, J., dissenting). I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue.
