The Last Legal Gasp — Amy Davidson Sorkin in The New Yorker.
When the state of Texas asked the Supreme Court, this week, to disenfranchise millions of voters in four other states—Georgia, Michigan, Pennsylvania, and Wisconsin—it said that it was doing so because “no other remedy or forum” existed. The Electoral College casts and counts its votes on Monday, and, Texas claimed, the Supreme Court was the “only venue” that could “protect” its Electoral College votes from being “cancelled.” It was the “only court that can hear this action quickly enough” to throw out those four states’ electors and force their legislatures to choose new ones. Presumably, the new electors would be more to Texas’s—or, rather, to Donald Trump’s—liking. The President had asked to join the suit, which he called “the big one.” Perhaps four years of dealing with a President who rewards inflated tributes to his power had given someone involved with this lawsuit the impression that such an outrageous argument might work. It didn’t; on Friday evening, the Court, in a brief order, threw out Texas’s lawsuit, saying that the state had no standing to even bring it.
With that, the big one is done. There is no forum or venue, under our Constitution, to do what Texas and Trump wanted, because what they wanted was utterly unconstitutional. As Pennsylvania’s reply, submitted by attorneys for the state, including Attorney General Josh Shapiro, put it, “Texas invites this Court to overthrow the votes of the American people and choose the next President of the United States,” in what would be a “seditious abuse of the judicial process.” It is a relief that the Justices refused to even entertain that invitation. The only ones who took even the tiniest step in Texas’s direction were Justices Samuel Alito and Clarence Thomas. Alito, in a short statement that Thomas joined, said that he did not believe the Court had the “discretion to deny the filing of a bill of complaint” because the case fell within its “original jurisdiction.” (In short, certain disputes between states are heard directly by the Supreme Court rather than working their way up through lower courts.) But Alito added that he would have granted Texas no “other relief”—the state had asked for an injunction to halt the Electoral College’s vote counting, among other things—and that he expressed “no view on any other issue.”
Even the Court’s conservatives, then, seemed to recognize that this was not a constitutional controversy that merited its involvement but a crude power grab. And yet so many other supposedly serious figures in the Republican Party did not. This lawsuit was not some folie à deux in which Trump and Texas—or, more precisely, Texas’s attorney general, Ken Paxton, who has his own legal problems—got caught up in their own private madness. No fewer than seventeen states that Trump won signed on to what’s known as an amicus curiae brief urging the Court to take Texas’s suit. Missouri’s attorney general, Eric Schmitt, played a leading role in that effort, but all the state officials who put their names to it rushed to do something shameful. So did the members of the House of Representatives who similarly expressed their support. There are a hundred and twenty-six of them, at last count. (Two are from New York: Elise Stefanik and Lee Zeldin.) Many of them are not marginal figures; the list includes Kevin McCarthy, the House Minority Leader. It is enraging and also profoundly sad that these Republicans value our democracy so little. Why were they so willing to treat a system that, for all its flaws, has proved sturdy even in the Trump years as a disposable partisan toy? How could they, without mortification, back a brief that included the suggestion that the election must be crooked, because the chance that Trump’s opponent could have won the four states was less than one in “a quadrillion”?
There is no acceptable justification. There needs to be a real reckoning; if prominent Republicans do not now use the Court’s decision to renounce Trump’s campaign to overturn the election, they will do real and lasting harm to the country. The early signs are not good. The head of the Texas G.O.P. put out a statement suggesting that “law-abiding states” might want to form their own “Union of states,” while others, as of Saturday morning, were silent. Trump, of course, is unrepentant. He tweeted, “WE HAVE JUST BEGUN TO FIGHT!!!”
It was never enough for Republicans who supported the suit to tell themselves that they could be as ridiculous as they liked, because the Supreme Court wouldn’t go for the argument, anyway. If they didn’t know how much Trump’s efforts had eroded his supporters’ faith in the integrity of the electoral system, they should have realized it from reading the briefs that Texas and Trump filed, which, perversely enough, cited those doubts as a rationale for why the Supreme Court should intervene. “The nation needs this Court’s clarity,” Texas argued—as if the Court should reward them for creating confusion by throwing out electors. Trump’s brief made that point even more crassly. “The fact that nearly half of the country believes the election was stolen should come as no surprise,” it said, arguing that, by ruling in Texas’s favor, the Court would allow voters to “find solace” in an election result that excluded “illegal votes.” (All indications are that, by “illegal,” Trump means votes that were not cast for him; actual, specific allegations that there was fraud, backed by evidence, are conspicuously absent from the Texas and Trump briefs.) In short, Trump argued that because he threw mud on the election system’s machinery, the Court was obliged to junk it.
There is so much that is wrong with the Texas and Trump filings—not just legally but factually. The Pennsylvania reply referred to a “cascading series of compounding defects,” and a “surreal alternate reality.” The fallacies include Trump’s assertion that, since no candidate has ever won the states of Florida and Ohio without winning the Presidency, and he won both of those states, something must be “amiss” with the results. As numerous commentators have pointed out, that premise is simply not true: Nixon won Florida and Ohio in 1960, but Kennedy won the election. Of course, it doesn’t even matter—there is no clause in the Constitution saying that, if a candidate wins both those states, balloons instantly fall from the ceiling and the lucky contestant is awarded the Presidency. The fake Florida-Ohio standard may be a final example of how Trump’s constant lies serve to distract and disorient anyone who tries to keep up with them. For example, a person might spend a lot of time actually contemplating the election of 1960—perhaps it was stolen from Nixon?—without getting to the bigger conceptual fallacy.
Similarly, Texas argued that the power to decide how electors are appointed, which the Constitution gives to state legislatures, had, instead, been seized by others: state-government officials, and shadowy actors. They had, Texas claimed, used the pandemic as a justification to make the elections less secure, in some cases for partisan advantage. Each of the four states replied that Texas was factually wrong about what the actual practices in their states were. Texas’s “basic arguments about how Wisconsin state law works are flat out wrong,” Wisconsin wrote in its reply. Pennsylvania put it even more bluntly when addressing Texas’s list of the supposedly murky practices there: “untrue,” “false,” “utterly false,” “nonsense.” And Texas was legally wrong, because any changes were, in fact, in keeping with the existing laws of those states. “Texas’s suggestion of a wide-ranging conspiracy is a fantasy,” Pennsylvania’s brief said. More than that, Texas was constitutionally wrong in thinking that it could, as Pennsylvania put it, “dictate the manner in which four sister States run their elections.” Georgia referred to the dispute as “Texas’s attack on Georgia’s sovereignty.”
The Supreme Court didn’t even get to those arguments. It stopped at the first major flaw it came to in the case: standing. This is the principle that a party bringing a lawsuit must have been injured in a way that is judicially “cognizable,” which, in effect, means that it has suffered a real—not a speculative or a theoretical—injury of a sort that the law can recognize and redress. Texas made a convoluted argument about how it would be harmed if Kamala Harris, as Vice-President, ever had to break a tie vote in the Senate, which didn’t even track logically. Texas also claimed that it had standing to sue the states because their actions “debased the votes of citizens in Plaintiff State and other States that remained loyal to the Constitution.” The very framing of that argument—the imputation of disloyalty to the Constitution on the part of Georgia, Michigan, Pennsylvania, and Wisconsin—is an act of bad faith. It is also a dangerous provocation.
“Texas suffered no harm because it dislikes the results in those elections,” Pennsylvania replied. “Texas has no legitimate interest in overturning the will of Wisconsin’s voters,” that state said. “There is no allegation that Georgia targeted Texas,” Georgia’s reply said, adding that, while there was no evidence that Texas would be harmed, Georgia certainly would be if its election results—which, as the reply noted, have been counted three times now—were ignored. Michigan, too, said that Texas was attempting to “disenfranchise millions of Michigan voters in favor of the preferences of a handful of people who appear to be disappointed with the official results.” Disappointment is not a legally cognizable injury. The Court agreed, saying that Texas had no judicially cognizable interest in how “another State conducts its elections.”
Courts obviously have a role in protecting election integrity and insuring that individual voting rights are not violated. But Texas is not, say, a voter who has wrongly been subjected to a poll tax. And, as each of the four sued states noted, Trump and his allies have brought dozens of suits in courts across the country, many of which judges have heard, and some of which have reached the Supreme Court. He just keeps losing them. The Supreme Court was the “only” place the President and his allies could go—because they’d already gone everywhere else. Most important, Trump went to the voters on Election Day. And they chose Joe Biden.
Are we going to forgive and forget once this is all over? Will we let those who sided with Trump in this blatant attempt to subvert the will of the electorate and the Constitution get away with it? Will the 126 Republicans who signed on to this coup attempt face any kind of consequence for their sedition?
In all likelihood, probably not. They are counting on the short-term memories of the voters and the Democrats’ queasiness at making a fuss. It’s worked in the past. But I do like this idea from Rep. Bill Pascrell (D-NJ) via Charlie Pierce:
Ari Berman, the relentless defender of the franchise against all enemies foreign and domestic, has been suggesting on the electric Twitter machine that none of the 126 Republicans who have signed onto the Covenant of Sedition should be seated when the new Congress opens in January. This I find intriguing because, after all, this whole election was corrupt because people said mean things to other people. Rep. Bill Pascrell, whose pursuit of the president*’s tax returns has been dogged, does Berman one better. He would refuse to seat them based on Section III of the 14th Amendment. It reads as follows:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Down with the traitor, up with the star!
Doonesbury — Color me livid.