If we were the Supreme Court — a stretch to be sure — we’d hear the case that Texas and 17 other states have filed against Pennsylvania, Georgia, Michigan, and Wisconsin. The censorious publications in our national debate would deem that a politically incorrect opinion. It seems to us, though, that the case offers the best chance of calming the anger that has welled up around this election from both sides.
The states that share Texas’ concerns, after all, have nowhere else to go save for the high court. Think of this as the last chance for the court to at least try to preempt four years arguing about whether this was a properly conducted contest. Such a situation ought to be in the interests of the Democrats as well as the Republicans. Yet the intensity of the objections to the case suggest a kind of panic over what the justices might do.
Texas & Co. allege that the 2020 election was compromised by the crisis in respect of Covid-19. It cites the “massive increase in fraud-prone voting by mail.” Plus, too, the complaint alleges the vote was “compromised by numerous changes to the State legislatures’ duly enacted election statutes by non-legislative actors — including both ‘friendly’ suits settled in courts and executive fiats via guidance to election officials.”
Texas and other states filing on its side, whom President Trump has filed to join, argue that these changes “undermined state statutory ballot-integrity protections such as signature and witness requirements for casting ballots and poll-watcher requirements for counting them.” Texas wants the Supreme Court to enjoin Pennsylvania and the other defendant states from using their electoral votes until they get clearance from their legislatures.
It’s not our purpose here to take sides on that question, though the Sun tends to favor a plain language reading of the Constitution, which gives state legislatures unalloyed preeminence. It is our purpose to suggest that the Supreme Court give a hearing to the case laid before it under the Nine’s constitutional status as the court of original jurisdiction in a case in which a state is a party. In this case, of course, several are.
Much is likely to be made of the so-called “safe harbor” that, in theory, puts beyond challenge electoral outcomes certified by the states by December 8. That harbor, though, is not established in the Constitution. It’s a legislated curb on efforts to enforce the election laws. So this is a case and controversy for which the Supreme Court strikes us, for one, as ideal. The only enumerated constitutional deadline is January 20 at noon.
Yet what extraordinary language is being used to mock the idea that the Supreme Court might hear this case. One law professor, quoted in the Times, calls the case “a press release masquerading as a lawsuit.” It quotes another professor as calling it “a new leader in the ‘craziest lawsuit filed to purportedly challenge the election’ category.” Michigan’s attorney general, quoted in Texas Tribune, calls the suit “beneath the dignity” of Texans.
The New York Times is out this morning with a piece headlined “There’s Still a Loaded Weapon Lying Around in Our Election System.” It suggests that “state legislatures are still a threat to appointing electors contrary to the will of their voters.” Never mind that state legislatures get their standing in the Constitution (and that the courts themselves sometimes act contrary to the will of the voters).
Meantime, the Washington Post is out with an editorial warning about violence. We share the concern. The Post suggests it’s being stoked by President Trump. What makes it so explosive, in our view, is all the efforts to ridicule and block efforts to get a review — somewhere — of the questions Texas has laid before the Supreme Court. We fail to see a reason why the justices shouldn’t adjudicate the case in a constitutional way.
Drawing by Elliott Banfield, courtesy of the artist.