Wednesday, December 09, 2020

Texas SCOTUS Original Jurisdiction Lawsuit Would Undercut Marbury v. Madison

 by Michael C. Dorf

On Tuesday, the State of Texas filed a lawsuit ostensibly within the Supreme Court's original jurisdiction, naming the states of Georgia, Pennsylvania, Michigan, and Wisconsin as defendants. Texas argues that executive and judicial officials in these states violated Article II, Section 1 of the Constitution when they construed their respective state laws in a way that, according to Texas, departed from the supposed constitutional rule that when that provision assigns to state legislatures the power to decide the manner of selecting Presidential electors, it excludes a role for other organs of state government. As I have noted before and as U Illinois Law School Dean Vikram Amar argues extremely persuasively in a new article, although various Justices have expressed support for this "legislatures only" theory, which builds on a three-Justice concurrence in Bush v. Gore, it is very ill-conceived and should be rejected in some future case.

But not in this case. Even if one accepts the legislatures-only theory arguendo, the Texas lawsuit is meritless. Every judge to consider similar claims in state and lower federal courts has concluded that, absent very credible evidence of widespread fraud (and there isn't anything resembling such evidence), remedying allegedly ultra vires election rules set by state executive or judicial officers should not entail "disenfranchising millions" of voters who cast their votes in good-faith reliance on those rules. That's a quote from the thorough and persuasive Third Circuit opinion by Judge Bibas, a Trump appointee. That  opinion also offers multiple additional reasons why the Trump campaign was not entitled to relief, many of which apply with even greater force to the Texas original jurisdiction case now at the Supreme Court.

Accordingly, I have no doubt that the Texas lawsuit will fail. Here I want to offer some thoughts about how it should fail.

It would be good to see the Court write an opinion rejecting the Texas lawsuit on the merits. A unanimous ruling by a Supreme Court with six Republican appointees, three of them appointed by Trump himself, would send a useful signal to whatever portion of the Trump-supporting public is even a bit rational that the claims that Democrats stole the election are false. However, even that might not do the trick. There have already been multiple debunkings by judges, elected officials, and others with impeccable Republican credentials at every level of government. To the true believers, a further rejection by SCOTUS might simply be taken as evidence of the depth of the deep-state conspiracy, including not just turncoat AG Bill Barr but Trump's three SCOTUS appointees!

In any event, I don't expect the Court to address the merits. Let's take a look at the procedural obstacles to the case.

Article III, Section 2 of the Constitution gives the Supreme Court original jurisdiction in cases to which states are parties. A federal statute says that such jurisdiction is exclusive (meaning such cases cannot be brought in lower federal courts or state courts) in cases between two or more states. Hence, Texas argues in its brief that the Supreme Court is the only forum in which it can have its claims heard. That's wrong, as the dozens of similar cases rejecting identical claims by other plaintiffs illustrate. Even if the Supreme Court is the only forum for Texas to make these claims, the claims have been made and found woefully wanting in numerous other fora.

Nonetheless, let's assume that the prior and repeated rejection of claims like the ones now made by Texas has no bearing on the ability of Texas to have its claim adjudicated. Does the statute conferring exclusive jurisdiction mean that the Supreme Court must hear the Texas case?

No. In a 2016 case, Justices Thomas and Alito argued that the Court's original exclusive jurisdiction is also mandatory jurisdiction but they acknowledged that the Court "has long exercised" "discretion to decline to decide cases within its original jurisdiction." As recently as February of this year, only Justices Thomas and Alito took the exclusive-jurisdiction-means-mandatory-jurisdiction view. It's possible that they will be able to persuade Justice Barrett to join them, but even so, it is clear that a majority of the Court believe they have discretion to decline jurisdiction. That is very likely what they will do.

Even if the Thomas/Alito approach were adopted, the Supreme Court could readily dispose of this frivolous case under a procedure it used routinely before 1988, when it had nominally mandatory appellate jurisdiction in a wide range of cases in which a federal claimant lost in the lower courts. The Supremes could not possibly give plenary consideration to all of those cases, which is why Congress eventually provided statutory relief by converting nearly all of the Court's jurisdiction to discretionary by writ of certiorari. But before that relief came, the Court triaged by routinely summarily affirming lower court cases on the ground that they did not present "a substantial federal question." Although the Texas case arises within the Supreme Court's original jurisdiction, a closely analogous procedure would be to say that Texas summarily loses on the merits for failure to present any substantial legal claim.

Suppose that Justices Thomas, Alito, and perhaps Barrett think that they need to hear the case and that a summary dismissal without oral argument doesn't count as hearing it. They would presumably say just that, without saying anything on the merits. If they were to reach the merits, as I've noted, there are numerous grounds for rejecting the claim--some of the best of them set out in an amicus brief filed by some extremely prominent "lawyers and others who have worked in Republican administrations, and former Senators, governors and Congressional representatives."

But much as I would like to see Texas and the other states in the thrall of Trump lose on the merits, a merits ruling would do serious damage to the Supreme Court, because Texas has not alleged a judicially cognizable injury that confers legal standing. Texas claims that somehow by (allegedly) failing to follow the legislative prescriptions for holding their elections, the defendant states have diluted the vote of Texas in the Electoral College and of Texans in the Presidential election. A brief by 17 other GOP-dominated states argues that a state's failure to follow the separation-of-powers principle they find in Article II, Section 1, injures the other states by infecting the presidential election with the possibility of fraud and illegality.

Notably, the fraud argument contradicts the legislatures-only theory. If the problem is that a state legislature gets to conduct its selection of presidential electors any way it wants, then presumably a sister state would have no cause to complain if a state legislature selected a method rife with the possibility of fraud. The fraud argument is thus a red herring. The core of the case is that Texas is injured because Texas doesn't get the president it wants as a consequence of other states acting in a supposedly unlawful manner.

But if that's an injury, so is virtually anything. The state-versus-state original jurisdiction provision does not require that the plaintiff state rely on federal law. So if Texas has standing in virtue of the fact that the other states: (1) acted unlawfully (2) with the result that people in Texas don't get what they want, then anything goes. Under the Texas approach, here are some cases that can be filed as original actions in the US Supreme Court:

A suit by Massachusetts against a whole bunch of red states that impose voter ID requirements and thus dilute the votes of African Americans in alleged violation of the Voting Rights Act and the Fifteenth Amendment, which in turn makes it likelier that Presidential elections will go against the wishes of Massachusetts voters.

A suit by Washington State against South Dakota arguing that by permitting mass gatherings without masking or social distancing, South Dakota officials endangered the health of Washingtonians who traveled there and returned home to infect others, thereby causing parens patriae injury and direct pocketbook injury to the state.

A suit by New York against Texas alleging that by failing to meet various federal environmental standards, Texas dirties the air that eventually must be breathed by New Yorkers.

Actually, each of the foregoing lawsuits provides a stronger basis for standing by the state plaintiffs than the actual Texas case. It's child's play to construct hundreds of equally plausible injuries to a state from the allegedly unlawful action of another state. If Justices Thomas and Alito think that the Court really has no discretion to summarily reject state-on-state original jurisdiction cases, then unless they reject the Texas case on standing grounds, they will invite a tsunami of such litigation.

And that in turn would undermine the holding of Marbury v. Madison. No, not the part about judicial review, the holding that Congress may not expand the Supreme Court's original jurisdiction beyond what Article III provides. Although Chief John Marshall did not set out a functional justification for that part of the decision in Marbury, it's easy to see one: The Court is ill-equipped to handle more than a handful of occasional original jurisdiction cases. Allowing Congress to flood it with such cases would prevent the Court from playing what Henry Hart famously called its essential function of ensuring the supremacy and uniformity of federal law through appellate jurisdiction cases. If Congress--which has the express power to make rules necessary and proper to regulating the Supreme Court's jurisdiction--cannot add to the Court's original jurisdiction, then certainly neither can the Attorney General of Texas.

As a citizen, I would like nothing better than for the Court to write an opinion like the one Judge Bibas wrote for the Third Circuit--condemning the outrageous effort of Texas and the Trump campaign to destroy democracy. As a federal courts teacher and scholar, I'll settle for a summary dismissal on standing grounds.


Joe said...

"The State will also argue that if this Court exercises jurisdiction over Texas’s complaint, it is equally important that the Court act quickly to give the Nation certainty. As a preliminary matter, it is the State of Arizona’s consistent position that this Court’s jurisdiction over actions between states is exclusive and non-discretionary. See Arizona v. California, 140 S. Ct. 684, 684-85 (2020) (Thomas, J., dissenting). The State recognizes, however, that the Court’s current jurisprudence is that its jurisdiction over such matters is discretionary. If the Court either revisits its prior holdings or exercises discretion to accept jurisdiction here, then it is critical the Court resolve this challenge quickly to give the Nation certainty."

Arizona brief

George said...

Leave aside the litigation conduct in these cases, the inconsistent positions lawyers have taken in court and in the media, and procedural issues such as standing, remedies, and independent and adequate state grounds (e.g., latches). And focus right now just on Pennsylvania. As I understand it, the theory being pushed is not the "legislature-only theory." (At least, not anymore.) Rather, the theory is that mail-in voting in PA violated the Electors Clause because the PA legislature violated the PA constitution when it expanded mail-in voting. What are your thoughts on that theory? I'm asking because you, Professor Tribe, and Grace Brosofsky recently, and very persuasively, argued that in order to comply with the Electors Clause, a state must comply with its own constitutional requirements for lawmaking.

Michael C. Dorf said...

George: that was the theory of the Kelly case the Court rejected yesterday. The Texas case does rely on the legislature-only theory.

Steve Davis said...

Why not dismiss on standing grounds and ALSO on the merits. Bibas did that, didn't he (I can't keep track of which suit is which in all the mess, though not for lack of trying)? Doesn't that eliminate the problem you cite?

Michael C. Dorf said...

Steve: I'd be very very happy with that. I think that it's very unlikely they'll write anything, though.

Jim said...

I think one political consequence of not ruling on the merits would be that MAGA kids will feel like they never got a chance to prove the "massive fraud" or whatever.

I don't think we should blow up the Constitution just to appease them though. Agreed it would be best just to yeet this case on standing grounds.

George said...

Mike: The Court didn’t reject the “theory,” just injunctive relief, and some people are saying the case isn’t over because the Court didn’t reject the alternative cert. petition. Even if that’s wrong, which I saw Professor Vladeck point out on Twitter that it is, I’m wondering your thoughts on the underlying theory of the Electors Clause in the Kelly case as applied to PA.

neroden@gmail said...

It's established legal doctrine that a state supreme court is the final word on the interpretation of a state constitution.

Changing THAT would be a monumental legal upheaval and violation of precedent -- I really doubt they'll do it. It would eviscerate federalism.

PA Supreme Court has already ruled: PA legislature followed PA constitution, so did PA state government

Unknown said...


Paul L. said...

With all that energy paradoxically generated from all the "losing" lawsuits, and with this particular Electors Clause focus, they may just try something in legislatures without waiting for courts to bless it, and just let the Dems appeal.

The Presidential selection process just starts with elections, it continues through administration and litigation, and through the mediation of the Electoral College, but it always ends with political vote counting in Congress, quite unlike any other "election." It's obvious to me that Republicans are executing a very robust political phase here at the end, and most people are missing the point that what ain't working legally is building politically, and perhaps that is the main purpose anyway. All this political energy needs is a roadmap and SCOTUS could issue the roadmap even along with a scolding dismissal, so i say watch out.

Michael C. Dorf said...

A few quick responses:

(1) George: Yes, I agree, but I didn't say that the Court in the Davis case rejected the theory. I said "that was the theory of the Kelly case the Court rejected yesterday." In that independent clause, "rejected yesterday" was meant to (and syntactically does) follow "the case." So I meant only that the Court rejected the case, not the theory, which it didn't address.

(2) neroden@gmail: The Bush v. Gore concurrence, which is the authority on which the "legislatures only" theory builds, says that in presidential elections, the ordinary rule of the Erie RR case does not apply, so that state courts are not the final authority. There are some other contexts in which that's also true. Henry Monaghan wrote the best defense of a view like this, although he didn't fully endorse the Bush v. Gore concurrence. I discuss it here:

(3) Paul L.: You are absolutely right that the political strategy is more successful than the litigation strategy but it will also fail to block Biden's inauguration. Trump and his allies first tried pressuring local and state elected officials, then state legislators. It's effectively too late for the state legislative strategy to work. No legislature in any of the red-state-legislature state will meet to name Trump electors before the Electoral College meets, and even if they did, they have already missed the safe harbor deadline. The play in Congress will also fail. I think Ted Cruz and maybe some other craven Republican Senators will join Mo Brooks & Jim Jordan in calling for a debate, but Biden's electors will be affirmed by the Democratic House and the Democrats plus at least Senators Romney, Collins, Sasse, and Murkowski. The lasting damage to democracy from the spineless acquiescence in Trump's attempted putsch is going to be enormous, but Biden will be inaugurated.

George said...

Mike: So then what do you think of the underlying theory as applied to PA’s extension of mail-in voting?

Saharita said...

Once again, I have learned about an area of our government I knew little about (SC jurisdictions in this case. Thanks! This scares me: "To the true believers, a further rejection by SCOTUS might simply be taken as evidence of the depth of the deep-state conspiracy, including not just turncoat AG Bill Barr but Trump's three SCOTUS appointees!" On the one hand, I grew a tad more confident in the 3 trump appointees yesterday with the PA ruling. But the point you make, that any ruling against Trump deepens the perceived conspiracy, I don't have a question other than is there any way out of this chasm dividing our country. If his own justices cannot bring a stop to it.

Michael C. Dorf said...

George: I'm not sure I understand your question. The objection to mail-in voting in the Kelly case did not rely on the legislatures-only theory. Quite the contrary, it claimed that the PA legislature had violated the PA Constitution when it created a new category of mail-in voting beyond the state constitution's (ostensible) limits on absentee voting. The PA Supreme Court rejected the claim on laches grounds, which was an independent and adequate state law ground, so there was never any basis for bringing the case to the SCOTUS.

Michael C. Dorf said...

Pennsylvania's brief is excellent:

George said...

Mike: Yes, indeed. As I said and asked in my first comment, in referring to the Kelly case but ambiguously so, which has lead down this rabbit hole (my fault, not yours): “Leave aside the litigation conduct in these cases, the inconsistent positions lawyers have taken in court and in the media, and procedural issues such as standing, remedies, and independent and adequate state grounds (e.g., latches). And focus right now just on Pennsylvania. As I understand it, the theory being pushed is not the "legislature-only theory." (At least, not anymore.) Rather, the theory is that mail-in voting in PA violated the Electors Clause because the PA legislature violated the PA constitution when it expanded mail-in voting. What are your thoughts on that theory? I'm asking because you, Professor Tribe, and Grace Brosofsky recently, and very persuasively, argued that in order to comply with the Electors Clause, a state must comply with its own constitutional requirements for lawmaking.”

Yes, the brief is very good.

Frank Willa said...

Acknowledging the post and the comments for the analysis and insights; this 'move' by Texas Rs shows how well founded the concerns, here and Verdict, about the transfer of power over the past several years were. There seems to be no limit to which T, and the enabling Rs will go. Now for over a month, they fuel the 'election fraud' notion in the court of public opinion; seriously undermining million of citizens belief in the foundation of our democracy - our vote.
I skimmed through the Texas 'filing' and the 'our view', or its just a 'piece of parchment' claim, does not even consider there is a way to constitutionally look at events any other way (ok, it is advocacy).
Then in 'D' of the Prayer for Relief...
'pursuant to the Court’s remedial authority, the Defendant States to conduct a special election to appoint presidential electors.'
As a practical matter just how would this happen...all on the same day or as each state determines according to its authority to conduct elections...and what happens with the Electoral College if the elections have not been held...or are contested, yet again...
Chaos. I thought this all was settling down as time passed and the results were certified. It seems to me these challenges are shreading the fabric of our this the last challenge or are there more to come...?
Yes, the concerns raised over the years, tragically, were all too well founded.

Henry Baker said...

“There seems to be no limit to which T, and the enabling Rs will go.”

This is just silly. Say whatever else you want about Trump (or this dumpster fire of a lawsuit) but intervening on behalf of an ill-advised and frivolous lawsuit is simply not consistent either with a “putsch” or with a strongman who has no limits on his desire to seize power.

In fact, there have already been junctures in this current debacle at which President Trump has shown that he does have limits. The day after the election, while he still had a lead in PA, he could have declared a “MAGA 2nd Amendment rally” or some such in Philadelphia and led tens of thousands of armed supporters to physically seize all remaining ballots. That would not only be the handiwork of a man with “no limits” it would also be a putsch.

Trump isn’t Hitler, and Biden isn’t and won’t be Stalin, breathless hyperbole from seemingly all corners notwithstanding.

Michael A Livingston said...

I think without an opinion on the merits it will be hard to calm people down. If nothing else, hearing the case focuses attention on the courts and away from State legislatures . . . Or worse. So, meritless or otherwise, I would prefer to see some kind of written opinion.

Joe said...

Broad language like "no limits" is repeatedly a sort of rhetorical hyperbole that now and then it is useful to remind is just that. But, it sort of is always implied.

When a term like "no limits" is used, if Stalinesque behavior is unlikely etc., it doesn't suddenly become "just silly." Such language regularly is used in the context of the possible in the specific situation in question.

Again, it is fine to remind now and then (though it often still is a bit tedious, since it is well known even by people who use the language) that the terms are somewhat hyperbole and thankfully so.

The absurd lawsuit, perhaps because Texas challenged four states, inviting a bunch of other states (not just the four) to respond in various directions, is resulting in a lot of responses. Even D.C., Guam and Virgin Islands (the last two not even having the power to elect a president via the elector approach) sign on to a brief.


I would not be surprised that in kind the Supreme Court won't simply deal with it via a one line order. At least, that no justice will comment. This is partially because some are flagging the state legislature question as important beyond this specific lawsuit. This is Ohio's gambit -- Texas is stupid, but the state legislature having a special constitutional role here question very important. We shall see.

Michael A Livingston said...

PS I wonder if Professor Dorf and others have considered filing an amicus brief in the Texas case (assuming that this is possible, I don’t know the rules for filing such briefs). My reasoning: while the Pennsylvania filing (e.g.) refutes many of the Texas points as legal matters, it does not (in my view) quite capture the danger if a suit like this were allowed to proceed and simply treated as a ordinary, run-of-the-mill litigation. Particularly as the Court may resolve the issue without reaching this point, there might be a value in a third party filing that did so.

Apologies if something of this nature has already been done—it’s hard to tell from the news coverage.