Texas Unleashes an Absurd Kraken

National Review Online

Friday, December 11, 2020

 

The odds of the Texas election lawsuit prevailing in the Supreme Court might not be less than one in a quadrillion, but they are extremely remote — and should be.

 

Texas is asking the Supreme Court to invalidate the presidential election in four battleground states won by Joe Biden because, it argues, election procedures in those states violated the Constitution, and the resulting irregularities impermissibly diluted the votes of Texans.

 

To call this far-fetched is an understatement — it is the Kraken of constitutional law.

 

Texas has no standing to challenge the election procedures in Pennsylvania, Wisconsin, Michigan, and Georgia, and the Supreme Court doesn’t have the authority to order new elections in those states or bar electors from those states from voting in the Electoral College. The case was brought by Texas because the Supreme Court is required to hear all lawsuits brought by a state against other states, but it retains the power to dismiss those suits out of hand if the case is not one that a state legally can bring. If there were any prior case that lent credibility to these outlandish claims, Texas would have cited it.

 

The state isn’t exactly scrupulous in the evidence it musters. It contends that Biden had less than a one in a quadrillion chance of winning any one of these battleground states after Trump established a lead on election night. The chance of winning all four, per the suit, was less than one in a quadrillion to the fourth power. But the calculation assumed that every batch of ballots would have roughly the same partisan breakdown, despite there never having been any real-world expectation of this. It was predicted that Trump would establish an early lead in states that counted in-person ballots first, and then Biden would gain as the states began to count mail-in ballots, which were heavily Democratic. The last-counted ballots were universally understood to be the Democrats’ turn at bat, given who they were and where they came from.

 

The suit rehearses arguments against the validity of the outcomes in the four battleground states that have been extensively litigated and rejected in other courts. Texas, for instance, makes much of the Pennsylvania secretary of state issuing guidance allowing counties to give voters the opportunity to “cure” faulty absentee ballots and the Pennsylvania supreme court permitting late-arriving absentee ballots to count, but there is no reason to believe either of these jerry-rigged measures involved enough votes to call into question Biden’s 80,000-vote margin in the state.

 

Texas argues that such acts contravened the electors clause of the Constitution that gives state legislatures the power to determine the manner of selecting electors. And in some instances, it might be correct. But the answer is not for the Supreme Court, at the urging of one state a month after the election, to reverse the duly certified election results in four other states. This would be a grotesque violation of federalism and our constitutional scheme, not to mention democracy. There is a proper, but limited, role for the federal courts in election cases: They can rein in violations of federal law based on evidence that the violation was large enough to affect the outcome. They do not have a free-floating mandate to oversee state election procedures.

 

It’s not too much to say Texas wants the Supreme Court to betray the U.S. constitutional order in a purported effort to save it.

 

That 17 other Republican states have filed a brief supporting Texas — and so have over 100 Republican members of the House — is a symptom of how far down the rabbit hole Trump has led the GOP in his election challenge. He’s no longer simply seeking his day in court, but explicitly trying to get the Court to overturn the election. The Supreme Court can’t dismiss this suit fast enough.