Outmanuevered (Updated)

So Texas and a number of other states, including Alabama and Louisiana, have sued the “swing states” regarding the presidential election. In the SCOTUS. This could get interesting.

The argument – and it’s a good argument – is that they followed the federal proscriptions of Article II of the constitution and that the swing states did not, and that they elected Trump and the swing states went the other way, electing Biden, and that their choice for president cannot be undone by other states that did not follow the rules.

Talking heads are opining that the SCOTUS will never “hear” the case. That’s incorrect. Suits between states are part of the SCOTUS’ “original jurisdiction”, not the overwhelmingly more common “discretionary docket”, where the SCOTUS can hear a case if they want to. The rule with exercising jurisdiction is that it’s just as mandatory to exercise jurisdiction that you have as it is to refrain from exercising jurisdiction that you don’t have.

So the SCOTUS will “hear” the case, and apparently they have directed the Defendant states to respond by tomorrow.

The argument from the other side is that there was the COVID and that they had to alter the rules in an emergency fashion, without the legislatures acting, and that the SCOTUS should not overturn the “will of the people”, and so on. That is not a good argument. At the SCOTUS, the constitution governs.

There are arguments to be made that the SCOTUS should not invalidate the election of the apparent winner. Those are not arguments for the SCOTUS. They should be directed to the state legislatures of the swing states, who have the option of appointing Biden electors anyway if the SCOTUS invalidates the popular vote determination due to irregularities or fraud or an unconstitutional procedure.

This is not a comfortable position for the SCOTUS Justices. If they go one way, they are banished from polite society in DC. If they go the other way, they have to break their own well settled and well known rules, possibly even to the point of dereliction of duty.

So this is really interesting. We’re on pins and needles here at LoS!

Update: From CNN. This is basically disinformation. Which we have come to expect from that network. Meanwhile Vox Day tracks the opinions of “legal experts”. Clearly wrong legal experts, who seem to believe that the SCOTUS can refuse to “take up” the states v. states case, as if it were there on petition for writ of certiorari instead of SCOTUS original jurisdiction, where SCOTUS has no discretion BUT to take it up.


Filed under epistemology, Media incompetence/bias

16 responses to “Outmanuevered (Updated)

  1. Joe Smith

    You are a lawyer and I am not, so I assume you have better insight here. In this case I don’t even understand the legal counter-claim. Texas seems to be saying, “You violated your own constitutions, in addition to the US constitution,” to places like Pennsylvania, and Pennsylvania doesn’t seem to be saying, “No we didn’t,” back. They’re just saying, “Well, yes, but we had to!” Is there something I’m missing here? Other than SCOTUS justices just refusing to do take their jobs seriously, is there even a way for Texas to lose on the merits?


    • Texas can’t ask the SCOTUS to review the PA constitution, but if you look at Article II Section 1 of the US constitution, it provides that the state legislatures govern the selection of the “electors” for the electoral college. Not the governor and not the state’s highest court. The legislature. So if Texas follows the rule and PA doesn’t and they choose different candidates then Texas is prejudiced by that. Constitutionally prejudiced.

      You can’t have the states that follow the rules lose to the states that don’t.

      Liked by 1 person

      • Joe Smith

        Sure, that’s what I mean. What I’m trying to ask is, how is there really any legal argument on the other side? All Texas is saying, as you write, is that PA et al. clearly didn’t abide by the US constitution (aside from also not following their own state constitutions, in some cases — which I guess doesn’t matter at the SCOTUS level). I’m trying to figure out what the named states can even say in response that could possibly be persuasive.


        • Zarepheth

          Can’t the named states simply say that their state constitution and legislature specified the forms by which they chose their electors and their state legislatures did not see fit to revoke or override the emergency powers granted to their executive branch?


        • They could say, among other things, that the case is not “justiciable”. There might be merit to that contention, but I don’t think it should prevail, not that what I think matters.


          • Joe Smith

            OK, I looked up justiciable and I see the argument. But then it’s something of a shell game for Texas. There’s no legislative or administrative alternative to address an internal problem in Pennsylvania (for example) for Texas to appeal to. I suppose that just leaves violence.


  2. S. Baum

    Out of curiosity, could you explain how:


    isn’t an example of Texas changing their election rules “through executive fiat or friendly lawsuits”. Did I miss a top secret Texas legislative session? And if you’re wondering, the voting section of the Texas constitution contains “legislature” 9 times and “governor” 0 times.


    Or is the whole legal argument thing about the sanctity of following state constitutions in voting matters only applicable to states that voted for Biden and have GOP-controlled legislatures?

    S. Baum

    Liked by 1 person

    • Apparently I had to affirmatively approve this comment because it has links and you’re a first time commenter. Or at least I think you are!

      Anyway, if your point is that Texas did not, in fact, follow the rules then I think that would be a good rebuttal to the Texas argument. It wouldn’t render the matter non-justiciable, although the whole thing could well be deemed non-justiciable for other reasons. Whether the Texas governor’s edict is deemed to be a “ministerial” adjustment that did not impinge upon the legislature’s exclusive federal constitutional role in the matter, well, I don’t know. And since what’s good for the goose is good for the gander, the defendant swing states might very well make the same argument about whatever their courts and/or governors did.

      My own opinion, for what it is worth, is that the matter was non-justiciable on “political question” grounds, inasmuch as it is a matter constitutionally consigned to the other branches to be worked out there. But as Z says, this is all moot now.

      Thank you for the thoughtful comment.


  3. S. Baum

    Is my previous question going to vanish just like a commissar?

    Liked by 1 person

  4. Zarepheth

    It’s probably a moot point, but I believe most of the states which joined Texas in complaining about the swing states that voted for Biden also let their executive or judicial branches modify the voting rules during the pandemic (or perhaps in recent years, previous to the pandemic).

    Unfortunately, my understanding comes from some articles I read in mid-December. Since I did not do my own research I am relying upon the truth and accuracy of the articles’ authors and publishers. The articles’ points were about hypocrisy, not the merits of the case if hypocrisy were ignored.


  5. S. Baum

    Either “ministerial adjustments that do not impinge upon the legislature’s exclusive federal constitutional role in the matter” are Constitutionally valid in all states or they’re valid in none, unless of course some state constitutions contain a “ministerial adjustments” clause. I can’t find one in the Texas constitution, though. “If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither on your side, pound the table.”

    Liked by 1 person

    • You’re making good points. And let me just run with your idea a bit. If it was found that the swing states’ measures were merely ministerial, to carry out the will of the legislature – which will is, after all, not self-executing – then that would be the end of the matter, on the merits, and the swing states would prevail and the Texas lawsuit would be dismissed. Another possible result would be that the swing states’ measures are found substantive and not merely ministerial, and the same for Texas. In that case, the final result could go either way. And the last possibility is that the swing states’ measures are found substantive and Texas’ are found merely ministerial, in which case Texas would win, or should win.

      And btw, this has nothing to do with the Texas State constitution. It is the US constitution that specifies that the legislatures are involved in these kinds of questions, seemingly to the exclusion of the other two branches of the state governments, but even that is not really clear and might never be definitively settled because this whole area might be non-justiciable for other reasons.

      In any event, a really good comment again. Thank you.


  6. S. Baum

    I have to confess that I’ve read the appropriate bits in the Constitution about elections and haven’t found anything I understand as saying that only state legislatures can modify any of the circumstances of presidential elections, although the various state constitutions are specific on the matter or, at least, they specify that the legislature can make changes albeit without specifically stating that the governor can’t. I’d appreciate a pointer to the exact Constitutional wording that imposes this limitation on the states. Could that limitation perhaps have been intuited in some SCOTUS case and then – by virtue of coming into existence and written into the record – been assumed thereon as being part of the Constitution? I know this happened in the 1886 SCOTUS case that established corporate citizenship. The actual written decision said nothing specific the matter, but a clerk intuited – perhaps using a Ouija board – that the equal protection clause applies to corporations. And thusly corporations are Constitutionally protected citizens because of a third-hand clerk’s commentary. I’m thinking that the Constitution is quite specific about the Justices making the final decisions rather than their clerks. Seems a bit house-of-cardsy to me.

    Liked by 1 person

    • Article 2, section 1: “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:”

      I am open to the argument that it is reading too much into this clause to maintain that ONLY the legislatures can have anything to do with deciding how “electors” are appointed.

      Then of course there’s the 12th amendment.


      The 12th amendment is, you know, a bit dense and wordy.

      Congress can pass statutes about all this if they want, but they’d probably all be unconstitutional in one way or another, or at least colorable arguments to that effect could be easily made.

      I agree with you. The whole thing is pretty fragile. Surprisingly fragile.


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