Kobach: Texas Holds the High Ground in Supreme Court Election Fight

View of the US Supreme Court Building on a bright Christmas Day
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The Texas lawsuit against Pennsylvania, Georgia, Michigan, and Wisconsin at the U.S. Supreme Court over the election has seen more briefings in less than four days than most Supreme Court cases see in four months.

Seventeen states filed an amicus brief supporting Texas, six of which filed a motion to intervene as co-plaintiffs.  The President filed a motion to intervene in support of Texas, and a multitude of organizations, legislators, and other interested parties filed amicus briefs. In total, the docket now contains more than 30 pleadings.

This flurry of written arguments was capped by the final briefs that Texas filed in the Court at dawn on Friday. Replying to the four response briefs filed by the defendant states at 3:00 pm on Thursday, Texas pulled an all-nighter and generated a total of 35 pages of rebuttal in two separate briefs.

Now that the field of battle is set, it is evident that Texas holds the high ground. The arguments weigh strongly in Texas’s favor. As I have explained previously, when Texas originally filed this lawsuit in the Supreme Court, the Lone Star State laid out two undeniable violations of the Constitution committed by the defendant states.

First, the defendant states violated the Electors Clause of Article II of the Constitution when executive or judicial officials changed the rules of the election without going through the state legislatures. The Electors Clause requires that each State “shall appoint” its Presidential Electors “in such Manner as the Legislature thereof may direct.” 

Second, they violated the Equal Protection Clause of the Fourteenth Amendment when individual counties in each of the four states changed the way that they would receive, evaluate, or treat the ballots. Twenty years ago, in Bush v. Gore, the Supreme Court held that voters had the constitutional right to have their ballots treated equally from county to county.

The responses that the defendant states filed on Thursday are long on rhetorical bluster about Texas minding its own business, but short on compelling arguments. 

Most importantly, the defendants were unable to answer effectively the fact that executive and judicial officials usurped the legislatures’ role and changed the rules going into the November 3 election, thereby violating the Electors Clause.

For example, the Pennsylvania Supreme Court clearly altered the rules when it extended by three days the 8:00 p.m. on Election Day deadline for receiving mail-in ballots. Trying to defend this action, Pennsylvania argued that state law is not really changed if the modification of the law is done by a state’s Supreme Court and the court asserts a basis in the state Constitution for doing so.

It doesn’t take a law degree to see through that tortured reasoning. As Texas replied, “The Pennsylvania Supreme Court’s addition of three days after the election was a direct and significant departure from the statutory framework.” It doesn’t matter what excuse Pennsylvania offers for it.  It’s still a change in the law.

Lawyers for the defendants also attempted to nitpick the statistical testimony indicating that the resulting elections irregularities yielded highly improbable vote totals. 

However, Texas went back to the statistician, and he pointed out in a second affidavit why his conclusions still stand. One strange pattern is that, looking at the top 50 urban areas in the country, Biden in 2020 did worse than Clinton did in 2016.  But in four of the five urban areas of the defendant states, Biden significantly outperformed Clinton. That is highly improbable.  In the words of the statistical expert, “Coincidences are possible, but relying on them is questionable.”

Perhaps the most revealing aspect of the defendants’ briefs is that they spend so much time trying to convince the Supreme Court not to take the case. They know that they are in trouble if the Supreme Court gets to the merits of this suit. The Constitution was undoubtedly violated in all four states.  

If those states are allowed to appoint Presidential Electors in an unconstitutional manner, it will render the words of the Constitution meaningless. 

Now all eyes look to the Supreme Court. Will they defend the Constitution, or will they find some reason to make the case go away?

Kris W. Kobach is an expert in constitutional law, immigration law and election law. He served as Kansas Secretary of State during 2011-2019.  He was a professor of constitutional law and immigration law during 1996-2011 at the University of Missouri-KC. He has provided some assistance to the plaintiff in this matter.

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