What’s next in the states’ fight over the election at the Supreme Court
State attorneys general went to battle at the Supreme Court on Thursday, taking sides on President Donald Trump’s bid to pull off an unprecedented legal victory that would bring the election to a screeching halt.
By late afternoon, the court’s docket was bursting with briefs reacting to a long-shot lawsuit seeking to invalidate millions of votes and President-elect Joe Biden’s victory.
Texas Attorney General Ken Paxton had filed the opening salvo earlier in the week, seeking to sue four battleground states and invalidate their election results. Thursday, lawyers for those states — Georgia, Michigan, Pennsylvania and Wisconsin — responded, blistering Paxton’s arguments and stressing that he had no right to bring such an unusual suit, particularly at the Supreme Court.
At the same time, a myriad of states and more than 125 Republican members of Congress — including Minority Leader Kevin McCarthy — filed so-called “friend of the court” or “amicus” briefs on both sides of the issue meant to educate the justices on every angle of the dilemma — or at least score political points.
The Supreme Court is ground zero of a fight between the states. Now the great wait begins.
What’s next?
Lawyers for the battleground states did not mince their words Thursday. For example, here is Pennsylvania’s attorney general: “Let us be clear. Texas invites this court to overthrow the votes of the American people and choose the next President.”
Paxton, never one to shy from a battle, replied Friday morning. “Whatever Pennsylvania’s definition of sedition, moving this Court to cure grave threats to Texas’s right of suffrage in the Senate and its citizens’ rights of suffrage in presidential elections upholds the Constitution, which is the very opposite of sedition,” Paxton wrote.
The filing sets up possible action at any time from the justices.
Around midmorning Friday, the justices dialed in to the court’s regular closed-door conference.
Traditionally, it’s an august affair in the court’s elegant conference room, where the justices discuss pending matters. No clerks, no staff are allowed in the room and the junior justice is charged with answering the door if anyone knocks. That’s all changed with Covid, and now they must hold their discussion over the phone. As recent telephonic oral arguments have shown, some of the justices seem to be weary of having to discuss complex issues without the benefit of face-to-face contact.
During the conference, they may discussed the pending matter. At the core they have to decide how to handle three requests from Paxton: He wants them to temporarily block election results in the four states, consider his case on an expedited time frame and agree to let him bring the case.
Which justices are key to watch?
All nine, really.
Although we may just get a one-sentence unsigned order in the end, as with Tuesday’s rejection of an attempt to throw out Biden’s win in Pennsylvania. Justices do not have to say how they voted, although in this instance it would take five votes for Paxton to get what he wants.
But one thing for sure is that Chief Justice John Roberts would not want such an order to reflect a divided court. He’d most likely want the court to speak authoritatively, with no public dissents. As for Trump, he may be watching his own appointees — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — hoping they will side with him.
Why are so many states involved?
Although the case started off with Texas challenging four states, it has grown into a dispute featuring some 18 Republican attorneys general siding with Texas and 22 Democratic-led states and territories supporting the battleground states that Biden won.
They are jumping in mostly, but not entirely, along ideological lines, with the full knowledge that this could be the last gasp, with electors voting Monday. Their goal is to bring the court’s attention to every conceivable angle of the case and educate the justices on the possible repercussions of any eventual order.
The other benefit is publicity. It’s an opportunity to curry favor with their respective bases, even on something that’s not going anywhere in court.
Remind me who’s on which side
Plaintiff: Texas.
Defendant states that Biden won: Georgia, Wisconsin, Pennsylvania and Michigan.
States with GOP attorneys general backing Texas: Alabama, Arizona, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah and West Virginia.
States/territories with Democrats backing the defendant states: California, Colorado, Connecticut, Delaware, DC, Guam, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia and the US Virgin Islands.
Will the justices read any of these amicus briefs?
It is unusual but not unprecedented to have so many briefs for such a case between states before the justices have even acted.
By now, however, the members of the court are likely intimately familiar with the legal issues at hand and they know that Texas’ move to come straight to the court, while allowed, could set an unwelcome precedent in the area of elections. The justices often have clerks wade through the briefs seeking a perspective that might be worth the justices’ valuable time. The jurists have thought long and hard about many of these issues, however, and were most likely bracing for court action given the tenor of the election. They may already be set in their views.
The court has also been busy this week. Thursday morning, it issued four opinions from cases heard earlier this fall (all 8-0 decisions). Also on Thursday the justices considered and rejected a plea to stay the execution of Brandon Bernard.
What are the Democrats saying?
By and large the states Biden won and other Democratic attorneys general say Texas doesn’t have the “standing,” or legal right, to bring the case. While it’s true that disputes between states can come directly to the Supreme Court under what’s called its “original jurisdiction,” they are often reserved for inter-state disputes on issues like boundaries or water rights.
Wisconsin Attorney General Joshua L. Kaul stressed that point, arguing that the bid to overturn another state’s election is an “intrusion.” The Constitution, Kaul said, leaves election rules up to the states.
Georgia Attorney General Christopher Carr said the Supreme Court should not decide such a dispute because Texas couldn’t prove direct legal harm. Carr had another idea: “There is another forum in which parties (who unlike Texas) have standing can challenge Georgia’s compliance with its own election laws: Georgia’s own courts.”
They also said Paxton had waited too long to bring the case. As Michigan Attorney General Dana Nessel said: “The election in Michigan is over.”
What are the Republicans saying?
There’s an emphasis on the idea that states changed election rules during the coronavirus pandemic without going through their legislatures, and the GOP side argues that Article II of the Constitution requires that exact step.
Missouri’s attorney general, Eric Schmitt, filed a brief on behalf of several states (including Louisiana, which was spelled incorrectly in the filing). He echoed Paxton in charging that non-legislative state actors had changed the rules in the battleground states, leading to “the unconstitutional administration of elections” in the states.
But many of those issues have already been litigated and his brief pointed to no massive fraud. Indeed even William Barr, the attorney general of the United States has said there was no such extensive fraud.
Which members of Congress are challenging the election?
More than 125 House Republicans, including Minority Leader Kevin McCarthy and Minority Whip Steve Scalise, have now signed on to an amicus brief backing Texas.
The signatories, as of Thursday evening, also include several lawmakers from the four states from which Trump and Texas are trying to throw out millions of votes: four from Georgia, four from Michigan, seven from Pennsylvania and one from Wisconsin.
What will happen to their elections if somehow the votes are thrown out?
It didn’t come up.
Are all Republicans on board with Paxton and Trump?
Absolutely not. Influential conservatives spoke out this week against the lawsuit. Utah Republican Gov. Gary Herbert went as far as saying he didn’t agree with the state attorney general’s decision to sign an amicus brief. “This is an unwise use of taxpayer money,” Herbert said in a statement.
Carter Phillips, one of the most respected appellate advocates in the country, who appears often before the justices, also weighed in against Paxton in a brief. In his amicus brief Phillips stressed that the Constitution and federal law authorize the states to handle their own election procedures. Not the Supreme Court.
GOP Rep. Chip Roy of Texas posted in a Twitter thread that he will not join in the amicus brief with other Republican members of Congress “because I believe the case itself represents a dangerous violation of federalism & sets a precedent to have one state asking federal courts to police the voting procedures of other states.”
Ohio filed its own brief claiming not to support either party. But actually the state sounded pretty critical of Paxton: “The relief that Texas seeks would undermine a foundational premise of our federalist system: the idea that the States are sovereign, free to govern themselves.”
Where is Joe Biden?
One voice who has been absent are Democratic lawyers representing Biden. They have not filed, likely because they believe the case is a long-shot bid and they fear a filing by them might bring the dispute some kind of legitimacy.
What is Trump doing?
Tweeting, mostly. He’s touted the states and lawmakers joining his quest, as well as repeated the falsehood that he won the election. (You should also read the fact check by CNN’s Daniel Dale and Tara Subramaniam of Trump’s Supreme Court filing.)
He had more than a dozen GOP attorneys general over at the White House on Thursday as well.
During a Hanukkah party at the White House on Wednesday night, Trump told guests that with the help of “certain very important people — if they have wisdom and if they have courage — we’re going to win this election.”
The crowd chanted “four more years.”
