Four states – Georgia, Michigan, Pennsylvania and Wisconsin – urged the Supreme Court on Thursday afternoon to reject Texas’ efforts to overturn the 2020 election. Using strong language rarely seen in Supreme Court filings, Pennsylvania Attorney General Josh Shapiro told the justices that they should “not abide this seditious abuse of the judicial process, and should send a clear and unmistakable signal that such abuse must never be replicated.”
The filings came in the lawsuit that Texas is seeking to file directly in the Supreme Court, a process known as original jurisdiction, attempting to delay the Electoral College vote and prevent the four states from casting their Electoral College votes for President-elect Joe Biden. The briefs filed on Monday by Texas Attorney General Ken Paxton contend that the 2020 election “suffered from significant and unconstitutional irregularities in those four states,” making it impossible to know who “legitimately won the 2020 election.”
Numerous lower courts and election authorities in the states at issue have found no evidence of fraud, illegality or any other election problems that would cast doubt on the results.
President Donald Trump on Wednesday asked the justices for permission to join the Texas lawsuit, arguing that “nearly half of the country believes the election was stolen.” And on Thursday morning, six more states – Arkansas, Louisiana, Mississippi, Missouri, South Carolina and Utah – requested approval to join, telling the court that they “share” the concerns voiced by Trump and Texas “about the unconstitutional administration of the Presidential election in the Defendant States, and its impact on voters in” their own states.
Georgia, Michigan, Pennsylvania and Wisconsin filed four separate briefs, but common themes emerged among all four. First, the states stressed, Texas’ lawsuit does not fall within the narrow category of cases in which the Supreme Court should exercise its original jurisdiction. Among other things, the states noted, there is another forum to resolve these disputes, as evidenced by the fact that courts around the country have repeatedly considered and rejected similar claims about the 2020 election. And if the Supreme Court were to exercise its original jurisdiction here, the states warned, its docket would be flooded with election-law disputes every four years in perpetuity.
Second, the states told the justices, Texas’ lawsuit is not a viable case because (again, among other things) Texas does not have a legal right to sue, known as standing, because it cannot show that it has been injured. Georgia pushed back against the argument that Texas has standing because it has an interest in the election of the vice president, who casts the deciding vote in the Senate: Texas doesn’t have a special interest in the vice president’s vote, Georgia observed, but in any event its “speculation that the Vice President may one day cast a tie-breaking vote” is not enough to support a lawsuit. Indeed, Georgia notes, during his eight years as vice president, President-elect Joe Biden never cast a tie-breaking vote.
The four states were represented by their attorneys general and other state officials, but Georgia was also represented by several private lawyers, including a former law clerk to Justice Clarence Thomas and Joseph Hunt, who served as the assistant attorney general at the Department of Justice during the Trump administration.
Texas is likely to file a brief responding to the four states’ filings. There is no timetable for the justices to rule on Texas’ request, although they will probably act quickly.
This post is also published on SCOTUSblog.