12/08/2020
From law professor Glenn Reynolds at Instapundit:
The Court revamped "state legislative districting" in 1964.WELL: Texas Sues Georgia, Michigan, Pennsylvania, and Wisconsin at Supreme Court over Election Rules.
The State of Texas filed a lawsuit directly with the U.S. Supreme Court shortly before midnight on Monday challenging the election procedures in Georgia, Michigan, Pennsylvania, and Wisconsin on the grounds that they violate the Constitution.
Texas argues that these states violated the Electors Clause of the Constitution because they made changes to voting rules and procedures through the courts or through executive actions, but not through the state legislatures. Additionally, Texas argues that there were differences in voting rules and procedures in different counties within the states, violating the Constitution’s Equal Protection Clause. Finally, Texas argues that there were “voting irregularities” in these states as a result of the above.
If the Supreme Court can revamp state legislative districting in the name of fairness, I see nothing to stop if from supervising state procedures for electing presidents.
A conservative lawyer emails
Of the actions now pending, this suit stands the best chance of overturning the election. It presents a fundamental issue of constitutional law that cannot be dodged without repealing the express provision of the Constitution governing selection of Presidential electors. The Supreme Court has original jurisdiction of the action, which involves no disputed issues of fact and does not involve issues of electoral fraud.
This is simply a matter of enforcing the Constitution, not amending it, as the Supreme Court did when they decided that state legislative entities not based on population had been unconstitutional for almost 200 years [Reynolds v. Sims, 1964] and similarly that local real estate transactions, employment, and food and lodging involved interstate commerce.
The case provides an opportunity to reverse the outrageously wrong state legislature ruling, since electors selected by Supreme Court legislatures districted only by population, including illegal aliens, undoubtedly differ from electors that would have been selected by constitutional legislatures that did not have to be based on the population of citizens and foreigners.
"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors … "
He points out that this only works if Trump appointees have the moral courage to follow the Constitution, and he also pointed to a number of interesting comments from Instapundit commenters:
Skeptic • 29 minutes ago • edited
As a lawyer, I find this suit really exciting. Very, very clever. And it creates a live dispute before the Court as to all of these states as of the Safe Harbor day (no accident that it was just filed).
Among the many brilliant things about it: The Supreme Court has original jurisdiction for disputes between the states, so by structuring this lawsuit as a dispute between Texas and the other states, it bypasses all the lower courts, which is essential, because there’s no time now to go through that whole process. In addition, the lower courts have shown that they don’t have the balls for this stuff; this suit takes it right to the five who might.
I'd bet this was Cruz’s idea (according to Dershowitz, his best student ever). Whoever thought of it is a very good legal mind and strategist.
This is all trailblazing stuff ("issues of first impression," as lawyers say), so who knows the outcome. But damn, this is a good try. Respect.
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