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.