Texas sues four states for violating the Electors Clause: Initial summary and comment

The State of Texas sued the states of Pennsylvania, Georgia, Michigan, and Wisconsin on 7 December 2020, filing directly with the Supreme Court of the United States (SCOTUS). Texas argues that the conduct of Defendant States elections violated the United States Constitution (USC) in multiple ways, foremost contravening the Electors Clause. I will briefly go over the filing in as simple of terms as possible based on my first reading.

SCOTUS is the only court with jurisdiction on an action between states, thus the direct filing. Texas claims that the four Defendant States violated the USC in several distinct ways in the conduct of their respective 2020 presidential elections with sufficient severity as to render their respective outcomes invalid. For each state, the details differ somewhat, but the basic alleged pattern is the same. The most significant pattern is a vastly expanded use of absentee voting combined with systematic erosion of state-enacted statutory security standards for the issuance, acceptance, and processing of such ballots.

The Electors Clause specifies that state legislatures have the exclusive power to set election rules for their respective states. In each Defendant State in 2020, however, Texas alleges that executive and judicial agents, at either state or local levels or both, violated their own state election legislation in multiple and substantial ways. In some cases, moreover, particular municipalities violated their own state election laws in ways that other such jurisdictions did not, thus violating the Equal Protection Clause in addition.

Texas argues that Defendant States conducting their elections substantially out of conformity with the Electors Clause has debased the votes of states that adhered to it. It argues that for each Defendant State, the alleged unconstitutional rule changes concern a number of potential votes that either exceeds or widely exceeds the number of votes differentiating the top two candidates. This means that this constitutional issue is far from a merely academic distinction, but rather has a potentially direct bearing on outcomes as well.

The non-legislative rule changes at issue centered around the widespread use of absentee ballots combined with the administrative relaxation of statutory security standards—such as witness and signature verification and other statutory standards and specifications for the application and acceptance of absentee ballots—in distinct violation of both the letter and spirit of prevailing election legislation in each state.

Texas asks the court to prevent these states from using the results of these allegedly unconstitutional elections in selecting electors for the electoral college. Since their state popular elections failed to conform with USC requirements, state legislatures should then either not appoint electors at all, appoint electors themselves independently of the outcomes of their unconstitutional elections, or hold new elections that do not share these defects.

The accompanying brief filed by the State of Texas in support of the suit summarizes the overall argument, including the interest of Texas and other states in bringing the action.

This case presents a question of law: Did Defendant States violate the Electors Clause by taking non-legislative actions to change the election rules that would govern the appointment of presidential electors? Each of these States flagrantly violated the statutes enacted by relevant State legislatures, thereby violating the Electors Clause of Article II, Section 1, Clause 2 of the Constitution. By these unlawful acts, Defendant States have not only tainted the integrity of their own citizens’ votes, but their actions have also debased the votes of citizens in the States that remained loyal to the Constitution.

Beyond this overview, it is fascinating to read the detailed allegations of how officials departed from and contravened state election laws state by state (pp 14–36 of original filing). This appears on first reading to be a strong argument. Although it does mention a long train of allegations of specific fraud and irregularities in these states, the suit does not depend on any of these allegations being established. Instead, it argues at a higher conceptual level that various officials in each state explicitly conducted their elections in ways that violated the USC by not adhering to their own state legislation. This remains the case regardless of any specific incidents of election fraud that may or may not be established to have taken place within these contexts.

That there may have been an unusual prevalence of fraud and irregularity would on this basis then be unsurprising. The specific elements of state election legislation alleged to have been violated had fraud prevention as their main function and intent in each instance. The alleged violations of state election laws all lean in the direction of making fraud easier to accomplish than it would have been under adherence to the respective state election laws as written. It just so happens, moreover, that these non-legislative rule changes consistently operated in practice to benefit one candidate over the others. All of this, Texas argues, undermines the integrity of the election process as such, and with it, public confidence in this process now and in the future.

The filing strikes me as making compelling and well-supported constitutional arguments. It will be interesting to see what the defendants come up with and what the court will do.