Mailvox: a Canadian take on the Texas lawsuit

I received this email from a lawyer with a background in Canadian constitutional law, which I would not consider particularly relevant, but it’s never a bad idea to get the outsider’s perspective, especially that of a well-informed outsider, as this gentleman obviously is. I note that as of this writing, 9 States have already signed onto the Texas lawsuit.

I’m writing this email with the proviso that it’s been several years since I last practiced law in a professional capacity, and that my Con Law training was in Canadian Con Law, but on the face of it, the Lawsuit by Texas (and now Louisiana and apparently a bunch of other states) in the Supreme Court probably opens the way to a Trump win.  You’ll probably have other correspondents on this issue with more relevant legal experience but here’s my tuppence worth.   I’m viewing this strictly through a legal lens although politics inevitably creeps into it.  I take no view of or make any predictions concerning the likelihood of Trump crossing the Rubicon.  I’m just laying out why this case matters, and why it may succeed.

This is the case that SCOTUS has been waiting for.   There’s nothing the Court would be more loathe to do than to wade directly into disputed factual allegations of fraud when time is of the essence and the election hangs in the balance.  As the court of ultimate appeal SCOTUS’ role is primarily to decide questions of law, not of fact and in the usual course of events, they would hear the appeals of the Trump campaign and others of the dismissal by various judicial hacks of their election Fraud cases and if they had merit return them to the lower courts with an order that they be heard.   What they would not do is weigh the evidence, make a finding of fact and a dispositive order in favour of one side or the other.   That’s now how it’s supposed to work and given that the majority of the Court now is now comprised of originalists, or those with originalist leanings, it would go against everything they supposedly stand for to wade into what is a very political controversy and start busting heads right or left where their authority to do so is questionable.   The ordinary course of these cases would be to appeal up through the appellate court system to SCOTUS if necessary until their case was returned to a lower court with an order to that court to hear it.  No doubt the various low level judicial hacks would then make adverse judgements even after hearing the evidence and the whole process would begin again until the SCOTUS was forced to issue a dispositive ruling.  But that process could take months, if not years.

But there’s one big exception to this SCOTUS’s appellate role – the Supreme Court is the court of original jurisdiction for disputes between State governments – it can hear evidence and determine questions of fact. And in the current dispute there probably won’t even be much of that – few, if any of the facts that the Plaintiffs will rely upon are going to be seriously disputed and the substance of the case will revolve around the application of those facts to the election framework set out in the Constitution.   So not only is this a case that the Supreme Court is almost REQUIRED to hear, it’s going to be about the interpretation of very clear, straightforward clauses of the Constitution, and their application to the present circumstances.  It’s an Originalist’s legal wet dream.

 This case also presents the best opportunity of the court to deal with the matter cleanly and without appearing partisan (who am I kidding – the court will be labelled partisan by the media if it gives anything but a full-throated endorsement of Joe Biden).  The answers to the questions presented by the Plaintiffs are simple and set out very clearly in the Constitution.   The likely best-case scenario for the Plaintiffs is that the Court agrees that the election was irrevocably flawed and throws out the results in some or all of the four states in question, leaving neither candidate with a majority of electoral college votes and passing the matter to Congress to decide.  Even if the court declines to take that step, simply reiterating that how electors are selected is solely at the discretion of state legislatures (A state legislature is entirely within its rights to get rid of presidential elections and simply appoint electors as it sees fit and indeed in the early years of the Republic several did just that), it would give authoritative legal cover to the legislatures in the impugned states to nullify the results and select their own electors.

My view is that what path the Court takes will largely depend upon how many States formally support Texas.  If it’s only Texas, Louisiana and one or two others then the court may be inclined to take a minimalist approach.  But if 15 or 20 States sign on then SCOTUS may see this as evidence that vast swathes of the country have no confidence in the fairness of the recent election and it will be more inclined to nullify election results and put this squarely in the lap of Congress.  The fact that there are a half-dozen or so other states apparently joining, including Florida (so 2 of the 3 most populous states in the Union) gives credence to the view that the legitimacy of this election is seriously in doubt and the Court must act.  

Lastly there’s no way GEOTUS did not know that this lawsuit was in the pipeline, nor that states other than  Texas would be signing on.   The fact that he recently appeared at a Rally in Georgia confirms this in my view.   The more Americans get fired up and bombard there state and congressional politicians with demands that they honour the will of the voter, the more likely additional states will sign on to Texas’ lawsuit, and the more GOP state legislators and congresscritters will find enough backbone to do the right thing.  Of course even if SCOTUS puts this in the lap of Congress or State legislatures this does not guarantee Donald Trump will be returned as President.  There’s nothing as feckless as a GOP politico being promised by Immigration lobbyists, big tech, and the Chamber of Commerce that the Benjamins will flow and that he’s got a great future as a Senator/Governor/President if he takes the statesman-like approach and ignores the yokels who voted for him.  That said from a legal perspective, the outcome of the election looks a lot less certain than it did 24 hours ago.

While I obviously welcome the idea of President Trump winning through the courts, don’t forget that this is only the second of his three primary options, and it may not even be his preferred one. Then again, as Sun Tzu teaches, the best victories are those that don’t require taking the field.

UPDATE: 17 States have signed on. Alabama, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah and West Virginia.

UPDATE: Arizona and Alaska too. Looks like we’re at the lawyer’s magic 20 States.