I'll admit it. I didn't see that coming. Not at all. And I dismissed it at first because I didn't think they would pass "standing". That is I didn't think that they had grounds to bring the suit because I didn't think they could show that they had been injured by other states. While that may still be decided (I don't think the word 'determined' is appropriate here because determined implies a statement of fact while decided can happen whether something is factual or not. To make this more clear, we have mentally defective people running around insisting that they are the opposite sex than they actually are (and want to force you to play along). This is a "decision". It has no basis in fact but it has been "decided" by that person. However, if you took a look at their genes you could *determine* that they are in fact male or female and if adults, men or women because that's what we call adult human males and females respectively.
Bringing us back to the case, Once I listened to some of the commentaries I understood where Texas believes it has standing and how it thinks it has been injured. Below is a good video (long) on the matter.
Now the important part is the constitutional issue at the center of the claim:.
The colloquially-named Electoral College arises from Article II, Section 1, Clauses 2 and 3, which state that:
Each 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; but no Senator or Representative, or person holding an Office of Trust or Profit under the United States shall be appointed an Elector.
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.[My underlines]
The relevant part is the part I underlined. As I discussed in my Ballot or Bullet post of a few days ago, these changes to election policies were in direct violation of law. Period. Full stop. The US Constitution clearly gives the power to the state legislatures. Not the governors. Not the state courts and not the secretary of state. None of these people have the power to change how the election (which is for electors) in on their own or in cahoots with each other.
What I expect from these states is some argument about Covid-19 and the state of emergency. This is also why I posted on the abuse of emergency declarations a few days ago. Governors have been abusing this pandemic for months without any repercussions save for a recent SCOTUS decision against Cuomo.
I have no idea how this will turn out. As I have said there is a lot of political pressure on SCOTUS.
Also, the 14th Amendment is in play here.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
So Texas is saying that it's citizens were denied due process protections because they voted under a constitutional regime while other citizens (in the states being sued) did not. I can see the court asking how PA law disenfranchised Texas voters. PA voters, maybe, but that would go to standing. I think the 14th Amendment claims would work if combined with what is referred to as the Guarantee Clause
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.This means, that the laws are passed by the legislatures, not the executive or his or her underlings.
Thus, the Guarantee Clause imposes limitations on the type of government a state may have. The Clause requires the United States to prevent any state from imposing rule by monarchy, dictatorship, aristocracy, or permanent military rule, even through majority vote. Instead, governing by electoral processes is constitutionally required.
So neither the people, NOR THE LEGISLATURES can vote the executive powers to rule by decree.
This brings us back to the case. Election laws were changed on the whims of governors and/or their underlings in clear violation of the constitutional requirement that they be done by the legislature.
If this is decided against by SCOTUS by either a refusal to hear or an actual ruling, it should be very interesting.
