Kobach: Texas Case Challenges Election Directly at Supreme Court

[IceWizard]

Kobach:
Texas Case Challenges Election Directly
at Supreme Court











KRIS W. KOBACH
7 Dec 2020



On Monday, just before midnight, the State of Texas filed
a lawsuit that is far more important than all of the others
surrounding the presidential election of November 3rd.

Texas brought a suit against four states that did something
they cannot do:
they violated the U.S. Constitution in their conduct of the
presidential election. And this violation occurred regardless
of the amount of election fraud that may have resulted.
The four defendant states are Georgia, Michigan,
Pennsylvania, and Wisconsin.


Texas filed the suit directly in the Supreme Court.
Article III of the Constitution lists a small number of
categories of cases in which the Supreme Court has
“original jurisdiction.”  One of those categories concerns
“Controversies between two or more states.” Texas’s
suit is exactly that. The Supreme Court has opined in
the past that it may decline to accept such cases, at
its discretion.  But it is incumbent upon the high court
to take this case, especially when it presents a such a
cut-and-dried question of constitutional law, and when
it could indirectly decide who is sworn in as President
on January 20, 2021.

The Texas suit is clear, and it presents a compelling case.
The four offending states each violated the U.S. Constitution
in two ways.

First, they violated the Electors Clause of Article II of the Constitution
when executive or judicial officials in the states 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.”

In the early years of the Republic, most state legislatures appointed
their presidential electors directly, without holding a popular election
for President. That would change during the early decades of the
nineteenth century. But the constitutional principle remained the
same.  Regardless of whether a state appoints its electors by a
vote in the legislature or by a vote of the people, it is the
state legislature — and only the state legislature — that sets the rules.

Thus, when the Pennsylvania Supreme Court extended by
three days the deadline for receiving mail-in ballots, contrary
to the law passed by the state legislature, the state court
changed the rules in violation of the Electors Clause. Similarly,
when Georgia’s Secretary of State responded to a lawsuit by
entering into a Compromise Settlement Agreement and Release
(i.e. a consent decree) with the Democratic Party of Georgia,
and modified the signature verification requirements spelled
out by Georgia law, that changing of the rules violated the
Electors Clause.

The second constitutional violation occurred 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 the landmark case of Bush v. Gore, the Supreme Court
held that it violated the Equal Protection Clause of the
Fourteenth Amendment when one Florida county treated
ballots one way, and another Florida county treated ballots
a different way. Voters had the constitutional right to have
their ballots treated equally from county to county.

So when election officials in Wayne County, Michigan, ignored
the requirements of Michigan law and denied poll watchers
access to vote counting, while other counties in Michigan
followed the law, that violated the Equal Protection Clause. 
Similarly, in Wisconsin, when the Administrator of the
City of Milwaukee Elections Commission ignored the
requirements of Wisconsin law and directed election workers
to write in the addresses of witnesses on the envelopes
containing mail-in ballots, while ballots without witness
addresses were deemed invalid elsewhere, that resulted
in the unequal treatment of ballots in the state.

Importantly, the Texas lawsuit presents a pure question
of law.  It is not dependent upon disputed facts.  Although
these unconstitutional changes to the election rules could
have facilitated voter fraud, the State of Texas doesn’t need
to prove a single case of fraud to win. It is enough that the
four states violated the Constitution.

The lawsuit asks the Supreme Court to remand the
appointment of electors in the four states back to the
state legislatures. As the Supreme Court said in 1892 in
the case of McPherson v. Blacker, “Whatever provisions
may be made by statute, or by the state constitution, to
choose electors by the people, there is no doubt of the
right of the legislature to resume the power at any time…”.

If Texas prevails, the four state legislatures could follow any
number of courses in appointing their presidential electors. 
They could assess the election results and try to exclude those
ballots that were counted in violation of state law in order to
determine a winner, or they could divide their Electoral College
votes between the two candidates, or they could follow a
different path. But they have to follow the Constitution in
whatever they do.

In the rest of country, the states followed the constitutional rules
in appointing presidential electors. The offending states cannot
be allowed to violate those same rules. It’s not just a matter
of constitutional law.
It’s a matter of basic fairness.



Kris W. Kobach is an expert in immigration law and election fraud.
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.