Texas Lost, and Conservatives Won

By John Yoo

Tuesday, December 15, 2020

 

Even Donald Trump’s supporters should welcome the Supreme Court’s decision late Friday to deny Texas’s claim that four battleground states had unconstitutionally run their 2020 presidential elections. It reaffirmed the half-century conservative effort to restore constitutional limits on the power of the federal courts. It rightly returns to the political process the question of whether any widescale fraud occurred in the presidential election. President Trump technically can still contest the 2020 results, but under a process set out in the Constitution where such challenges have never succeeded.

 

In Texas v. Pennsylvania, Texas attorney general Ken Paxton filed an emergency complaint a mere week ago claiming Pennsylvania, Georgia, Michigan, and Wisconsin had violated the Constitution’s presidential-election system. Article II states that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” In the four states, according to Texas, “executive and judicial officials made significant changes to the legislatively defined election laws” in violation of Article II. On the grounds that the COVID-19 pandemic required changes to election procedures, “these non-legislative changes did away with statutory ballot-security measures for absentee and mail-in ballots such as signature verification, witness requirements, and statutorily authorized secure ballot drop-off locations.”

 

In the following six days, everyone decided to throw in their two cents in amicus briefs. Red and blue states made appearances, along with more than 100 members of Congress, “constitutional attorneys,” former federal officials, curious individuals and even secessionists from California and Nevada (“New California State and New Nevada State”). In the very briefest of statements, a majority of the justices dismissed the case without reaching the merits. Citing a lack of standing under Article III, the Court said Friday: “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” The Court’s decision allowed states to certify their votes within a safe harbor date set by Congress and the electors to meet in their states on Monday to choose Joe Biden as president.

 

While many Trump supporters greeted the Supreme Court decision with dismay, they should welcome it. The move represents the latest step in a gradual process of rebuilding the wall between law and politics that progressives have sought to pull down since the beginnings of the Warren Court. The Supreme Court’s decision on Friday referred to the most important brick in that wall: the principle that the Constitution limits the power of federal judges to, as Article III describes, “cases” and “controversies” under federal law. The case-or-controversy requirement demands that the plaintiff have suffered a harm, traceable to the defendant’s conduct, for which the courts can grant a remedy. It also requires that federal law provide a right for the plaintiff to sue.

 

Without Article III’s careful limitation on what the courts can hear, federal judges might soon undermine the Constitution’s careful design for the separation of powers and federalism. As a middle-aged law professor named Antonin Scalia put it in 1983, this “standing” doctrine “roughly restricts courts to their traditional undemocratic role of protecting individuals and minorities against impositions of the majority.” It further “excludes them from the even more undemocratic role of prescribing how the other two branches should function in order to serve the interest of the majority itself.” If freed from the limit that federal judicial power apply only to live disputes between real parties under federal law, as Justice Scalia later wrote in Lujan v. Defenders of Wildlife in 1992, the courts would become “virtually continuing monitors of the wisdom and soundness of [government] action.”

 

Texas cleverly attempted to evade the standing requirement by turning to a separate provision of the Constitution. Article III not only sets out the case-or-controversy requirement, but it also includes “Controversies between two or more States” and even mentions that in “all Cases . . . in which a State shall be Party,” the Court would have original jurisdiction — which means that states can litigate in the Supreme Court as a trial court, rather than reaching the justices on appeal like everyone else. The Court regularly handles such cases. Indeed, on Monday the justices heaped insult upon injury by handing Texas another loss in a suit against New Mexico over the management of the Pecos River.

 

Texas v. Pennsylvania’s hurried nature prevented the Court from fully explaining why it rejected this claim. Two justices, Clarence Thomas and Samuel Alito, dissented because they believe that the Constitution places a mandatory duty on the Supreme Court to hear such interstate disputes. But the Court properly dismissed the case nonetheless, first for the reason it gave, and second for the reason it forgot.

 

First, Texas could not meet the requirement for standing because it could not show that it had suffered any unique, particular harm. Rather, Texas claimed that it had suffered the same harm that had allegedly befallen the rest of the nation — that some states had violated the Constitution’s Elections Clause and perverted the outcome of the presidential contest. That harm fell far more concretely on obvious parties, such as Donald Trump, the voters, and the officials and legislators of Pennsylvania, Georgia, Michigan, and Wisconsin. Consider this: In Bush v. Gore, the Supreme Court stopped the Florida courts from ordering recounts of the 2000 election tally in a lawsuit between the candidates and Florida. Under Texas’s theory, however, any state could have sued Florida in 2000 — in fact, under Texas’s theory, any state could have sued any other in any presidential or federal midterm election over irregular procedures.

 

Yet states do not have a free-floating right to sue each other for allegedly violating the Constitution. If Texas could sue Pennsylvania over its choice of election procedures — which the Constitution’s federal system vests in the states — then states could sue Texas right back over matters such as whether to allow mail-in voting. California could sue states that require voter ID for unconstitutionally suppressing the vote. Blue states could challenge red states over the way they draw their congressional districts. Northern states could sue Southern states over whether their voting laws meet a mythic, single federal standard for holding elections. And states need not stop at objections over electoral rules, either. If the Court had agreed with Texas, it would have opened a Pandora’s Box entangling it in a thicket of politicized cases for decades.

 

Second, the Court did not raise another important element of the case-or-controversy requirement, which has played to Trump’s benefit before and still leaves the door open to him now. Courts will not find a federal case, even if the plaintiff has suffered a discrete harm, to exist if it raises a “political question.” A political question is “nonjusticiable,” as the Court explained in the 1993 Nixon v. United States, “where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department” or “a lack of a judicially discoverable and manageable standards for resolving it.” Under the political-question doctrine, courts have refused to review impeachments (which made Trump’s acquittal earlier this year the final word) and the drawing of congressional districts by state legislatures.

 

A challenge to a state’s choice of electors seems tailor-made for the political-question doctrine. Under the Twelfth Amendment, electors sent their votes on Monday to Washington to be opened. The instruction reads, “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” If the Constitution creates any forum for raising challenges to the selection process for electors, it is here. Left unclear is how the validity of those votes is to be determined. An old law, the Electoral Count Act, attempts to create a process where a member of the House and a senator must jointly agree to challenge an electoral vote, and then the House and Senate must separately vote and agree to reject the vote.

 

The Electoral Count Act, however, might be unconstitutional. The vice president’s role is not a merely ministerial one of opening ballots and then handing them over to be counted. Though the Twelfth Amendment describes the counting in the passive voice, the language seems to envisage a single, continuous process in which the vice president both opens and counts the votes. The check on error or fraud in the count is that the vice president’s activities are to be done publicly, “in the presence of [Congress].” And if “counting” the electors’ votes is the vice president’s responsibility, then the responsibility for judging the validity of those votes must also be his.

 

If that reading is correct, then Congress cannot use the Electoral Count Act to dictate how any individual branch of government is to perform its unique duties; Congress could not order future Senates how to conduct an impeachment trial, for example. Similarly, Vice President Pence could decide whether to count votes that remain under challenge. Based on the evidence that the Trump campaign has offered in court, Pence currently would have no grounds to reject the electoral votes from Pennsylvania, Georgia, Michigan, and Wisconsin. On December 1, now-outgoing Attorney General William Barr publicly declared the Justice and Homeland Security departments had seen no evidence of systematic fraud, even while revealing that federal authorities had “followed up on” some allegations in the election.

 

As a former Justice Department official who served in the George W. Bush administration, I trust that Barr and his deputies have looked at the claims of election fraud in the battleground states and found none to have occurred that could change the outcome of the election. The Constitution still leaves one last chance for Trump to try a Hail Mary pass to overturn the 2020 results. As the Court appeared to recognize Friday, the Supreme Court will not play referee for that call; the Twelfth Amendment leaves such weighty decisions up to the political system, particularly the vice president and Congress.

 

Much like Clemenceau once said about generals and war, the Constitution is too important to leave up to the Supreme Court.