Supreme Court Unanimously Rejects Texas Bid to Overturn Election

President Donald Trump appointed two-thirds of the justices on the United States Supreme Court. They all summarily rejected the outrageous bid by the indicted Texas attorney general—signed off by 17 other Republican states and Trump himself—to subvert the election. The press reaction is unusually blunt.

Adam Liptak, New York Times (“Supreme Court Rejects Texas Suit Seeking to Subvert Election“):

The Supreme Court on Friday rejected a lawsuit by Texas that had asked the court to throw out the election results in four battleground states that President Trump lost in November, ending any prospect that a brazen attempt to use the courts to reverse his defeat at the polls would succeed.

The court, in a brief unsigned order, said Texas lacked standing to pursue the case, saying it “has not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections.”

[…]

Texas’ lawsuit, filed directly in the Supreme Court, challenged election procedures in four states: Georgia, Michigan, Pennsylvania and Wisconsin. It asked the court to bar those states from casting their electoral votes for Mr. Biden and to shift the selection of electors to the states’ legislatures. That would have required the justices to throw out millions of votes.

[…]

Mr. Trump’s campaign did not immediately issue a statement. In an appearance on the conservative network Newsmax soon after the decision was announced, Rudolph W. Giuliani, Mr. Trump’s personal lawyer, said that the campaign’s legal effort would continue, insisting that his team had originally planned for “four or five separate cases.”

“We’re not finished, believe me,” he said with a laugh at the end of the interview.

The president, who at a White House Hanukkah party earlier in the week eagerly mentioned the pending court case in his remarks, was scheduled to attend another holiday party around the time the ruling came down. But around 8:30 p.m., guests were informed that Mr. Trump would not be coming down from the residence to speak.

Mr. Trump weighed in later on Twitter. “The Supreme Court really let us down,” he said. “No Wisdom, No Courage!”

Robert Barnes, Washington Post (“Supreme Court dismisses bid led by Texas attorney general to overturn the presidential election results, blocking Trump’s legal path to a reversal of his loss”):

The Supreme Court on Friday dismissed a long-shot bid by President Trump and the state of Texas to overturn the results in four states won by Democrat Joe Biden, blocking the president’s legal path to reverse his reelection loss.

[…]

Justices Samuel A. Alito Jr. and Clarence Thomas said they did not think the court had the authority to simply reject a state’s filing, a position they have taken in past cases. But they said they would not have granted Texas the remedy it sought, which was to disallow the electors from those four states.

Legal experts from the beginning had derided Texas’s unprecedented action as implausible, and the court’s rejection was fast and emphatic — the order came just hours after briefing was completed. The justices seemed to have bypassed a lengthy explanation in favor of a unified outcome.

Taking into account an earlier request from Republicans in Pennsylvania, it means that in two cases to reach the court — where conservatives hold a ­6-to-3 majority — no justice has expressed support for the drastic idea of throwing out election results.

Nina Totenberg, NPR (“Supreme Court Shuts Door On Texas Suit Seeking To Overturn Election“):

The U.S. Supreme Court on Friday night rejected an eleventh hour challenge to Joe Biden’s election as president.

The court’s action came in a one-page order, which said the complaint was denied “for lack of standing.”

The Guardian (“Supreme court rejects Trump-backed Texas lawsuit aiming to overturn election results“) and CNN (“Supreme Court rejects Texas’ and Trump’s bid to overturn election“) apparently got the memo as well.

SCOTUSblog’s Tom Goldstein, writing before the announcement, was hoping for more:

The easy thing for the Supreme Court to do is simply deny Texas permission to file the complaint (and deny the motions to intervene as moot) and be done with it. No fuss, no muss.

But the court should do more. It is perfectly ordinary and appropriate for the justices to write an opinion explaining the various reasons why they are rejecting Texas’ request. Indeed, the minority of justices who think that the court is required to accept original actions like Texas’ may well write short opinions of their own or note that they think the case was properly filed. So there is nothing overreaching if a majority of the court explains why the case is meritless.

The justices’ decision whether to do that needs to account for this extraordinary, dangerous moment for our democracy. President Donald Trump, other supportive Republicans, and aligned commentators have firmly convinced many tens of millions of people that the 2020 presidential election was stolen. If that view continues to take hold, it threatens not only our national politics for the next four years but the public’s basic faith in elections of all types that are the foundations of our society.

A simple five-page per curiam opinion genuinely could end up in the pantheon of all-time most significant rulings in American history. Every once in a long while, the court needs to invest some of its accumulated capital in issuing judgments that are not only legally right but also respond to imminent, tangible threats to the nation. That is particularly appropriate when, as here, the court finds itself being used as a tool to actively undermine faith in our democratic institutions — including by the members of the court’s bar on whom the justices depend to act much more responsibly.

In a time that is so very deeply polarized, I cannot think of a person, group or institution other than the Supreme Court that could do better for the country right now. Supporters of the president who have been gaslighted into believing that there has been a multi-state conspiracy to steal the election recognize that the court is not a liberal institution. If the court will tell the truth, the country will listen.

Volokh Conspiracy’s Jonathan Adler argues that the opinion is actually much more of a smackdown than the reporting would have us believe:

This result was not a surprise. As I indicated in my prior posts on AG Paxton’s initial filing, the intervening briefsamicistate defendants’ responses, and Paxton’s feeble replies, this case never had merit. As the Court concluded, Texas could not satisfy the requirements of Article III standing to challenge the election procedures utilized by other states to select presidential electors. What is more, even the two justices who believed the Court was obligated to hear the case-arguably the Court’s two most conservative justices-did not believe Texas was entitled to the extraordinary relief it sought, relief which would have been necessary for AG Paxton’s last-ditch effort to have any result on the electoral college. AG Paxton’s office submitted transparently weak arguments, and the Court summarily dispatched them.

It is important to underscore that the Supreme Court’s decision is, for all practical purposes, unanimous. Justices Alito and Thomas have long held the view that when a state seeks to invoke the Court’s original and exclusive jurisdiction, the Court is obligated to hear the case. (See, e.g., their dissent from the Court’s refusal to hear Arizona v. California.)  This is a serious argument, which Ilya Somin discussed here and which I suspect may be correct. So while the vote on Texas’ Motion for Leave was technically 7-2 on this basis, the Court was 9-0 in rejecting AG Paxton’s attempt to get any sort of actual relief, such as an injunction preventing states from appointing presidential electors. Not a single justice was willing to express any sympathy for any aspect of Texas’s legal claims.

As for the rest of Justice Alito’s statement, what “other issue” might he be referring to? I suspect this is a reference to the Pennsylvania litigation that is still pending, about which Justice Alito previously issued a statement.

On the rest of the Court’s order, it is significant that the Court did not merely note the lack of standing, but also specified that Texas had not “demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” In other words, one state cannot invoke the jurisdiction of the federal courts to challenge another states election processes, even when it concerns the selection of presidential electors. This should discourage other states from trying such things in the future, whether to raise Electors Clause claims, Equal Protection claims, or anything else.

As I have already noted, this should not have been a surprise to anyone who was paying attention. The briefs submitted by AG Paxton’s office were weak on the facts and weak on the law. In some respects, as I noted in prior posts, they were downright embarrassing. The briefs filed in support of Paxton’s claims were, on the whole, not much better. Those attorneys who were willing to file briefs that actually embraced the substance of Paxton’s claims should be particularly embarrassed. If Paxton’s own Solicitor General would not sign on to these briefs, why would the SG of Missouri or Utah?

[…]

The #Kraken may have been released. Tonight’s Supreme Court order should also have put it out of its misery.

Emphases all mine.

The Trump legal team is now something like 0-55 in the courts. Despite outrageous statements from Republican officials from the President to the House Minority Leader to numerous Senators, Governors, and lower state office-holders, the wishes of the voters in every state were ultimately upheld.

One hopes that there is a reckoning for those who so brazenly tried to steal this election. Alas, judging from my Facebook feed, the “stop the steal” nonsense had the desired effect of poisoning the well. People I know to be intelligent and otherwise decent and patriotic folks honestly think—or are at least willing to publicly proclaim in what they think are semi-private conversations among friends and comrades—that the Democrats somehow stole the election and that we’re living in a banana republic.

Indeed, Adler’s colleague Ilya Somin fears the Supremes didn’t do enough to dispel that notion.

I do worry that the Court’s decision to reject the case on procedural grounds will give more fuel to Trumpist claims that the plaintiffs were actually right on the merits, and that Texas would have won if only the justices had been willing to take up its claims. Texas’ position had numerous substantive flaws, as well. But committed partisans are likely to ignore that or be unaware of it.

More generally, I fear that tonight’s ruling won’t stem the dangerous tide of conspiracy-mongering about the election by Trump and many of his allies, and it won’t prevent a good many of his supporters from continuing to believe such claims. That said, the Supreme Court cannot be expected to solve all the flaws of our screwed-up political discourse. The justices’ job is much narrower than that. And tonight they did it well.

Indeed, they did. A unanimous verdict here is likely as powerful a message as we could have expected.

FILED UNDER: Campaign 2020, Law and the Courts, Supreme Court, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. CSK says:

    It’s quite ironic that Trump wanted Amy Coney Barrett appointed to the SC before November 3 so that he’d have a majority to decide this case in his favor.

    It also indicates that he knew he was going to lose not just the popular but the electoral votes as well.

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  2. drj says:

    Despite outrageous statements from Republican officials from the President to the House Minority Leader to numerous Senators, Governors, and lower state office-holders, the wishes of the voters in every state were ultimately upheld. […]

    People I know to be intelligent and otherwise decent and patriotic folks honestly think—or are at least willing to publicly proclaim in what they think are semi-private conversations among friends and comrades—that the Democrats somehow stole the election and that we’re living in a banana republic.

    There is no way this is going to end well.

    I also think this is a perfect illustration of the (perhaps) irreparable damage norm busting can do.

    There were people who initially said when Trump claimed the election was stolen “Give him a few days to process his loss. This is just blowing off steam, the guard rails will hold.”

    And here we are now.

    I’m not saying a stronger response by political commentators would have prevented this, but their refusal to properly identify what was happening and the accompanying lack of urgency certainly didn’t help.

    Same thing with the Russia-sponsored hacks in 2016. People were given an opportunity to look away and pretend that maybe things weren’t as bad as they almost certainly were, i.e. that the POTUS was elected thanks to the willingly accepted assistance provided by a geopolitical adversary. Ultimately, ignoring this fact didn’t exactly help to preserve the political health of the nation.

    Best-case scenario right now is that “Every election that Democrats win, is stolen,” becomes the next “Abortion is murder” – something that people profess to sincerely believe but not act in accordance with.

    So hopefully, no armed insurrection.

    Even so, in practice this will mean a significant rollback of voting rights in the red areas of the country. But how long will the economically productive blue states/counties (i.e. the actual majority) be willing to accept this situation?

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  3. Kathy says:

    This decision marks a major victory for states’ rights.

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  4. rn2md says:

    A small correction, Trump appointment one third of the court.

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  5. Mikey says:

    In an appearance on the conservative network Newsmax soon after the decision was announced, Rudolph W. Giuliani, Mr. Trump’s personal lawyer, said that the campaign’s legal effort would continue, insisting that his team had originally planned for “four or five separate cases.”

    “We’re not finished, believe me,” he said with a laugh at the end of the interview.

    You’ll be done at noon on January 20, you seditious goon.

    I do worry that the Court’s decision to reject the case on procedural grounds will give more fuel to Trumpist claims that the plaintiffs were actually right on the merits, and that Texas would have won if only the justices had been willing to take up its claims.

    That’s pretty much the standard line on the idiot side of this issue right now, alongside quotes of Patrick Henry (“Give me liberty or give me death!”). It’s insane.

    So now along with damaging Americans’ faith in our electoral system, Trump has done the same for the courts.

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  6. OzarkHillbilly says:
  7. Paine says:

    Someone should get Trump a “I nominated three justices to the Supreme Court and all I got was this lousy t-shirt” shirt.

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  8. gVOR08 says:

    The courts are proving to be the last guardrail preserving democracy and reason. Which is why the Koch Bros et al set out years ago on a decades long program of corrupting the judiciary through The Federalist Society.

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  9. OzarkHillbilly says:

    This video sums up the GOPs efforts to overturn the election better than any column or blogpost ever could.

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  10. Monala says:

    Trump tweeted this morning, “We have just begun to fight!”

    OTOH, the auto entry on my phone has already forgotten about him. It offered me Truck and Trumpet as options.

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  11. CSK says:

    @Monala:
    He knows he lost. He’s just playing to the Trumpkins at this point.

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  12. de stijl says:

    21st century American dolchstosslegende.

    Trump is Trump. We all knew he was going to sting us on his way out. It’s who he is.

    What is troubling and very concerning is the amount of our elected officials who explicitly or implicitly encouraged his behavior.

    And the number who will bray “We wuz robbed” for the next few decades.

    The djinni is definitely out of the bottle.

    The end was easily forseeable. I did not see that acceptance and encouragement of Trump’s idiotic lies would become a R litmus test.

    This is burning the building down cuz you got evicted behavior. And a shockingly large chunk of the neighbors bought the gasoline to help him.

    Someone convince me this isn’t active sedition.

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  13. Slugger says:

    This effort by Trump has been very successful. He sat back, sent a few tweets, played golf, didn’t bother with the ASEA trade conference, didn’t bother with his government’s Covid committee meetings, and raised more tha $207 million. Literally money for nothing. He is not letting go of this. Giving a sucker an even break is not in a casino owner’s DNA.

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  14. de stijl says:

    @Slugger:

    How does one manage to bankrupt a casino in Atlantic City in the 80s?

    Seriously, 85% of adult Americans if gifted a casino in AC could run it fairly well.

    It takes hard work and active mismanagement to bankrupt a casino properly located. Rubes give you money knowing they are going to get fleeced. You make 2 to 5% off every bet.

    Any idiot could make that work.

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  15. CSK says:

    @de stijl:
    Don’t forget that he also went bust trying to peddle vodka.
    Any idiot can make money promoting gambling and selling booze. Trump couldn’t.

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  16. Michael Reynolds says:

    @CSK:
    I don’t think ACB was about stealing the election because I don’t think Trump thought he’d lose. IMO, ACB is about blocking prosecution of Trump for his crimes. She may still pay off on that front.

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  17. CSK says:

    @Michael Reynolds:
    According to Maggie Haberman Trump himself alluded to the idea of having ACB in place before the election, just so she could fix things if they went south on him.

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  18. Teve says:

    @CSK: The vodka business is the easiest thing in the world. It’s a little known fact, but virtually no vodka bottler produces their own alcohol. There are three industrial giants like Archer Daniels Midland that produce vast quantities of grain alcohol. Vodka bottlers buy the alcohol, dilute it and filter it, put it in a bottle with a label and ship it. High school kids could successfully run that business.

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  19. CSK says:

    @Teve:
    Well, Trump slapped a $100 price tag on his Trump Gold (or whatever the hell it was called), which made it approximately five times the cost of any of the premium vodkas at the time. Vodka is vodka. Only an idiot would pay $100 for it.

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  20. CSK says:

    From the mouth of R. Giuliani, Esq., today:
    “We plan to move immediately, seamlessly, to Plan B, which is to bring lawsuits now in each one of the states. They’re just a version of the one that was in the Supreme Court.”

    According to Giuliani, Trump made this decision last night.

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  21. Slugger says:

    @de stijl: My personal theory on bankrupting a casino comes from my study of The Producers.. Bankruptcy doesn’t mean that the owner of an enterprise loses money; the people who relied on the owner lose money. I think that the casino was intended to go bankrupt with the laws governing business providing a shield for the principals. This making money while driving a business into the ground is not rare. The casino business in New Jersey may even involve guys with bent noses.

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  22. Michael Cain says:

    @CSK:

    “We plan to move immediately, seamlessly, to Plan B, which is to bring lawsuits now in each one of the states. They’re just a version of the one that was in the Supreme Court.

    Texas is going to sue in the district courts? The Trump campaign is going to sue on behalf of Texas and its voters? At some point one or more of the courts are going to toss Rudy in jail on contempt charges for repeated frivolous lawsuits.

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  23. CSK says:

    @Michael Cain:
    Yeah; I know. It doesn’t make much sense to me, either. But I suppose all they can come up with at this point is to keep repeating themselves. We all know the definition of insanity. No need for me to repeat it.

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  24. Teve says:

    @CSK: There are different grades of grain alcohol you can buy, known in the industry as head, heart, and tail. The cheaper stuff has more chemical impurities. But yeah Trump was selling cheap vodka for $100 a bottle. People who only want cheap vodka can get it for 8 dollars a bottle, and people who are willing to pay more aren’t going to do so for cheap filthy vodka. You can’t re-label an AMC Gremlin and sell it for Maserati prices.

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  25. de stijl says:

    @Slugger:

    Bent nose guys in AC in 1982? Who coulda knew?

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  26. Gustopher says:

    I do worry that the Court’s decision to reject the case on procedural grounds will give more fuel to Trumpist claims that the plaintiffs were actually right on the merits, and that Texas would have won if only the justices had been willing to take up its claims. Texas’ position had numerous substantive flaws, as well. But committed partisans are likely to ignore that or be unaware of it.

    My worry is that by failing to take the case, and by deciding that states have no interest at all in the elections of other states, that the Supreme Court has created a protection for antidemocratic behavior at the state level in future elections.

    What if Georgia had decided to toss out the election results and install their own electors? What would the remedy have been?

    With 20 Republican State AGs signing onto this, and 130+ Republican Congress Critters, they have stated that they are willing to do this, and I think we should take them at their word. This is a constitutional crisis, and the gravest threat to our country since at least the civil war (even there, the two countries would both be democracies, limited as they were at the time, so this may be worse other than, you know, slavery), and the Supreme Court said they have no jurisdiction.

    That does not seem good.

    Also, I was looking forward to Ted Cruz arguing gibberish in front of the Supreme Court…

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  27. de stijl says:

    @Gustopher:

    What would make it funny was the way and manner Trump treated Cruz in 2015.

    Trump got really rude and personal with Cruz.

    A whipped dog licking his master’s fingers is sad.

    Why would Cruz entertain such an endeavor? It makes him look weak.

    Sadly, the time has passed. I would have paid good money to see that.

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  28. Pylon says:

    @CSK:

    Rudy might want to check the decision of the Trump appointed judge in the district court in WI to day.

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  29. resident Donald Trump appointed two-thirds of the justices on the United States Supreme Court.

    One third.

    ReplyReply

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