SCOTUS Rejects Texas Suit But ...

The timing of this opinion brings to mind the 20th anniversary of Bush v. Gore.  The case might have been a somewhat less absurd usage of the courts [Rick Hasen argues the correct lesson should be changing the system to advance non-partisan electoral procedures] -- specific candidates challenging specific state electoral procedures not irregular in a general sense -- but it clearly had its own absurdities.  Tempus fugit.

The tail end of my last post tacked on the latest Supreme Court decisions, including regarding an attempt (joined by a myriad of people, including typo filled briefs by people like one representing "New California" and "New Nevada" as well as Citizens United and a majority of the House Republican caucus led by the minority leader) to overturn the popular vote in four states (the Midwest states turned and Georgia) and toss it to the state legislatures there.  Here is a bit more with links by SCOTUSBlog.  

A founder of the blog in a atypical statement (not totally -- he defended Neal Katyal earlier) strongly argued that the Supreme Court should have wrote a longer (if brief -- five pages or whatever) statement strongly rejecting the lawsuit as an abuse of the courts.  I think he lays it on a bit too thick, including on how useful it would be and how it would be the best hope. The best thing would be a bipartisan coalition in Congress joining together, but guess that is unlikely.  I was open to the idea while others also shared his feelings fairly strongly.  

Others argued that the lawyers involved should be sanctioned or worse. I am supportive of the sentiment as well and fear the alternative will be more of the same.  It is quite important to denounce and not forget what is being done here.  Some will likely see it as all theater, but it is not.  It also is actually taken seriously by probably millions of people in some sense.  I might say tens of millions even.  A majority of the people's House minority -- why not? voters (though they are saying votes in four or more states are tainted, including some they themselves come from) expanded their caucus -- want to overturn the vote (based on bullshit) and let state legislatures assign the electors.  

I share this sentiment:

And this is why I, and many Democrats, were disappointed by the results of this election, Biden/Harris aside. Republicans suffered no consequences for enabling Trump the last four years. They will suffer no consequences for enabling Trump in the current efforts to undermine a democratic process through blatant falsehoods. And they will suffer no consequences  for preventing Biden from appointing cabinet officials, never mind judges. So there are no incentives to get them to stop.

Disappointed/anguished/pissed off .. you know, depending on the moment.  Rick Hasen is happy at judges as a whole (a few did not) rejecting a bunch of really bad lawsuits (might very well be different if it came down to a state or two with somewhat more credible disputes), but still is concerned about the future because they still taint the integrity of our elections long term. Also, it will lead to more efforts to add voting restrictions, defended as necessary to safeguard electoral integrity. And, courts will uphold them on presumption of regularity grounds, mixed (as has been cited in some cases already) some general important state interest for the appearance of integrity. 

(In part: "But the fact that 18 attorneys general and 126 members of Congress, all Republicans, could line up behind this outrageous Texas case is horrible and bodes ill for the country for years to come." Also, "The delegitimization of the Biden presidency by Trump, and of elections generally, will reverberate for years to come. And that’s a real tragedy.")

Anyway, other than one mild win, Trump and Republicans supporting Trump have lost nearly sixty election lawsuits as of this writing. After the election, so far, the Supreme Court only disposed of two, one the other day without comment.  The Supreme Court dealt with one shortly before the election from Pennsylvania that some feared might matter, but it turned out the vote wasn't close enough. It might in some form technically be still active though again it's basically moot.  

OTOH, as with the case tossed today, there is an issue involving state legislatures regulate elections that at least three, maybe more, justices want to take.  It's trouble and would interfere with the power of states to regulate their elections, including judges and other electoral bodies tinkering around the edges in important ways to safeguard election integrity.  The one disposed today basically argued the four states had various electoral irregularities and this somehow (using some perversion of voter dilution or something principles) tainted the rights of Texans, whose "lawful votes" were harmed somehow.  

The alleged irregularities are bullshit and were dealt with in other cases. The overall argument was bullshit. So, the Supreme Court in a per curiam just said they had no Art. III standing.  It added this general rejection: "Texas has not demonstrated a judicially cognizable interest in the manner in which another State  conducts its elections."  Alito and Thomas cited their view on discretion in original actions, but given the explanation, not sure really the relevance.  The others didn't merely reject; basically they held Texas on the merits didn't have standing.  

The per curiam (note that it appears one can't just hold off from joining them silently so Barrett seems to have formally been involved though her not recusing herself didn't really change anything) doesn't spell out why Texas was wrong so it is unclear how much if any this will provide caution to future attempts to do something like this. "This" including in effect ideological partisan stunts (here perhaps to encourage Trump to grant a leader of the effort a pardon) against other states in the courts.  

[I say "apparently" from references on legal Twitter but see here suggesting only a majority is necessary.  Also, note that Alito had a "statement," not a dissenting opinion.  It probably is a partial concurrence. The wording overall for each group was probably carefully crafted though exactly what it means as noted by me is not totally clear.]

The order tossed other motions related to the case as moot. Alito and Thomas vaguely said that they "would not grant other relief, and I express no view on any other issue."  But, what does that mean? Is it a suggestion that they would accept the filing (do they think there is a judicially cognizable interest?) but reject it on the merits?  Or, won't do anything now?  What "other issue"?  A real opinion might have actually been useful in both cases to clarify these issues.

Anyway, as Rick Hasen notes, some more meritless litigation (including one being heard in Wisconsin tomorrow) will continue, maybe even after the electors meet on Monday.  And, then, there likely will be objections of the count in Congress -- House Republicans already said as much and Ted Cruz or someone else will join them in the Senate. It will be rejected and then we will see what else will be made up.  Will someone claim Biden misspoke the oath? Will Harris break a tie and someone challenge her citizenship?  

And, we must continue to speak out against the rejection of democracy and overall bullshit. The resistance will continue.