The state of Pennsylvania replied to the Texas suit. Obviously they think it's junk. I agree with some of the arguments PA made. For example the part where Texas says that the odds of ballots going to Biden, putting him over the top were some astronomically low percentage is speculation. That something is highly unlikely to happen doesn't mean it cannot and importantly, has not happened. Essentially, if there is any expectation of an event happening, it will happen at some point in time. You just need enough time.
But something else struck me:
Fifth, there was no state law violation when the Pennsylvania Supreme Court temporarily modifiedthe deadline for the receipt of mail-in and absentee ballots, because state constitutional law required it. SeePa. Democratic Party v. Boockvar, 238 A.3d 345, 369-72 (Pa. 2020). Under this Court’s jurisprudence, nothing in the Elections Clause of Article I “instructs, nor has this Court ever held, that a state legislature may pre-scribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution.” Arizona State Legislature v. Ari-zona Indep. Redistricting Comm’n, 576 U.S. 787, 817-18 (2015)(AIRC).The same is true for the Elector Clause in Article II. [ my underlines]
The underlined portion "the Pennsylvania Supreme Court temporarily" is at the heart of Texas' claim against PA (and I assume, the other states). Texas is saying that the constitution gives power explicitly to the legislature. So Pa has admitted to the Texas claim. Their rebut is that the PA constitution allows such behavior. BUT they cite a recent, as in this year, decision. Part of Texas' argument is that such lawsuits and court decisions were used as cover to make changes that the parties otherwise had no authority to make.
So the way I see it, if SCOTUS takes up this case they would have to address the lower court ruling that PA is using here as well as the broader constitutional claim. Either way, that PA admitted to part of the claim, IMO, makes this case more likely to be taken up.
