State of Texas Sues Battleground States for Unconstitutional Changes to 2020 Election Laws and the Unconstitutional Tabulation of Ballots | American Center for Law and Justice

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State of Texas Sues Battleground States for Unconstitutional Changes to 2020 Election Laws and the Unconstitutional Tabulation of Ballots

By 

Harry G. Hutchison

|

December 8

5 min read

Election Law

In an electrifying and unprecedented development, which massively advances election integrity, the State of Texas has filed a Bill of Complaint in State of Texas v. Commonwealth of Pennsylvania, State of Georgia, State of Michigan and State of Wisconsin (Case No. 220155).  Given its obvious potential to affect the 2020 presidential election, this litigation is outcome determinative. Courageously seeking to ensure that the United States remains a constitutional republic governed by law rather than arbitrary and capricious executive fiats, Ken Paxton, the Attorney General of Texas, has filed suit against the Defendant States to ensure the impartial and exact execution of the law, particularly, the impartial and exact execution of laws affecting the outcome of an election.

The Bill of Complaint’s prayer for relief is crucially important because it seeks a Supreme Court declaration that the Defendant States administered the 2020 presidential election in violation of the Electors Clause and the Fourteenth Amendment to the Constitution. Second, it seeks a declaration that any and all Electoral College votes cast by such presidential electors appointed in Defendant States are in violation of the Electors Clause and the Fourteenth Amendment to the Constitution, and therefore, cannot be counted. Third, the State of Texas seeks to enjoin Defendant States from using the 2020 election results for the Office of President to appoint presidential electors to the Electoral College. Fourth, the State of Texas seeks to enjoin the Defendant States from certifying presidential electors or otherwise meeting for purposes of the Electoral College pursuant to federal statute.

This case presents an extremely important question of law: Did the Defendant States violate the Electors Clause (or in the alternative, the Fourteenth Amendment) by taking—or allowing—non-legislative action to change the election rules that would otherwise govern the appointment of presidential electors. Article II, Section 1, Clause 2 of the Constitution provides in pertinent part:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.

Since the nation stands at an important crossroads, the Constitution must be followed, even during inconvenient times that include a pandemic. This is especially true now because lawful elections are at the heart of our constitutional democracy. Using the COVID-19 pandemic as an excuse to grab power, government officials in the Defendant States of Georgia, Michigan, Wisconsin, and the Commonwealth of Pennsylvania apparently usurped the authority given to them by the state legislatures. The Defendant States’ misconduct includes revisions, reinterpretations, and in some cases, the decision to ignore outright their state’s election statutes apparently to favor one candidate over another.  Evidently, each of the Defendant States acted in a very common and now familiar pattern: State officials sometimes through pending litigation settled suits in contravention of state law, or via executive fiat announced new rules for the conduct of the 2020 election that were inconsistent with existing state statutes defining what is lawful. In the State of Michigan for instance, Secretary of State Benson, without legislative approval, unilaterally abrogated Michigan election statutes related to absentee ballot applications and signature verifications. Nor did the state legislature ratify these changes. The Michigan Constitution provides that all registered voters have the right to request and vote by an absentee ballot without giving a reason; but on May 19, 2020, the Secretary took it upon herself to announce that her office would send unsolicited absentee-voter ballot applications by mail to all 7.7 million registered voters. At the same time, she falsely gave assurances that procedures were in place to ensure the accuracy and legality of the historic flood of mail-in votes. Nothing could be further from the truth, as she did the opposite and did away with protections designed to deter voter fraud. This is but one example. This apparent misconduct is contrary to Michigan law and contrary to the United States Constitution, which gives the state legislature of Michigan the sole power to regulate elections.

To repeat, the Constitution gives the sole power to make election-law changes to state legislatures rather than authoritarian elites sitting in state capitals. In addition, Defendant States failed to segregate ballots in a manner that would permit accurate analysis to determine which ballots were cast in conformity with legislatively set rules and which were not. And such errors were especially true for mail-in-ballots.

In other cases, Defendant States—according to the Bill of Complaint—have allowed rampant lawlessness to prevail. Alleged lawlessness includes the physical blocking and kicking out of Republican poll challengers; thousands of the same ballots run multiple times through tabulators; mysterious late night dumps of thousands of ballots at tabulation centers; illegally backdating thousands of ballots; signature verification procedures ignored; and more than 173,000 ballots in Wayne County, Michigan, which cannot be tied to a registered voter.

To be clear, the State of Texas Bill of Complaint presents a fraught question: Will the United States Supreme Court take this case involving an issue of original jurisdiction where the parties include two or more states and consider the well-grounded claims made by the State of Texas? One answer to this question can be found in Justice Thomas’ dissent in Arizona v. California, 589 U.S. ___ (2020) 150Orig Arizona v. California (02/24/2020) (supremecourt.gov). In Arizona v. California, the Supreme Court denied a motion for leave to file a Bill of Complaint, but Justice Thomas noted that while the Court has discretion to decline review in other kinds of cases, the Court does not have discretion to decline review in cases within the Court’s original jurisdiction that arise between two or more states. Why is this true? Justice Thomas answers this question by noting that the Constitution, in Article III states that “[i]n all Cases … in which a State shall be [a] Party, the supreme Court shall have original Jurisdiction.” This signifies that the Court has no more right to decline the exercise of jurisdiction, which is given, than to usurp that which is not given (See Cohens v. Virginia, 6 Wheat. 264, 404 (1821).

Election integrity and election security matter to the nation and to the American Center for Law and Justice. Please join our efforts to advance the impartial and exact execution of election law. The ACLJ believes that the United States is a republic, if we can keep it. Keeping it requires eternal vigilance and the mobilization of American citizens, including ACLJ members.

Join us in this fight.

Harry G. Hutchison

More Articles

Harry G. Hutchison is Senior Counsel and Director of Policy for the ACLJ. He has served as a Professor of Law at the Antonin Scalia Law School, George Mason University, and a Founding Fellow at the M.G. Robertson Global Centre for Law & Public Policy.

Harry G. Hutchison

Harry G. Hutchison is Senior Counsel and Director of Policy for the ACLJ. He has served as a Professor of Law at the Antonin Scalia Law School, George Mason University, and a Founding Fellow at the M.G. Robertson Global Centre for Law & Public Policy.

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State of Texas Sues Battleground States for Unconstitutional Changes to 2020 Election Laws and the Unconstitutional Tabulation of Ballots

By 

Harry G. Hutchison

|

December 8

5 min read

Election Law

In an electrifying and unprecedented development, which massively advances election integrity, the State of Texas has filed a Bill of Complaint in State of Texas v. Commonwealth of Pennsylvania, State of Georgia, State of Michigan and State of Wisconsin (Case No. 220155).  Given its obvious potential to affect the 2020 presidential election, this litigation is outcome determinative. Courageously seeking to ensure that the United States remains a constitutional republic governed by law rather than arbitrary and capricious executive fiats, Ken Paxton, the Attorney General of Texas, has filed suit against the Defendant States to ensure the impartial and exact execution of the law, particularly, the impartial and exact execution of laws affecting the outcome of an election.

The Bill of Complaint’s prayer for relief is crucially important because it seeks a Supreme Court declaration that the Defendant States administered the 2020 presidential election in violation of the Electors Clause and the Fourteenth Amendment to the Constitution. Second, it seeks a declaration that any and all Electoral College votes cast by such presidential electors appointed in Defendant States are in violation of the Electors Clause and the Fourteenth Amendment to the Constitution, and therefore, cannot be counted. Third, the State of Texas seeks to enjoin Defendant States from using the 2020 election results for the Office of President to appoint presidential electors to the Electoral College. Fourth, the State of Texas seeks to enjoin the Defendant States from certifying presidential electors or otherwise meeting for purposes of the Electoral College pursuant to federal statute.

This case presents an extremely important question of law: Did the Defendant States violate the Electors Clause (or in the alternative, the Fourteenth Amendment) by taking—or allowing—non-legislative action to change the election rules that would otherwise govern the appointment of presidential electors. Article II, Section 1, Clause 2 of the Constitution provides in pertinent part:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.

Since the nation stands at an important crossroads, the Constitution must be followed, even during inconvenient times that include a pandemic. This is especially true now because lawful elections are at the heart of our constitutional democracy. Using the COVID-19 pandemic as an excuse to grab power, government officials in the Defendant States of Georgia, Michigan, Wisconsin, and the Commonwealth of Pennsylvania apparently usurped the authority given to them by the state legislatures. The Defendant States’ misconduct includes revisions, reinterpretations, and in some cases, the decision to ignore outright their state’s election statutes apparently to favor one candidate over another.  Evidently, each of the Defendant States acted in a very common and now familiar pattern: State officials sometimes through pending litigation settled suits in contravention of state law, or via executive fiat announced new rules for the conduct of the 2020 election that were inconsistent with existing state statutes defining what is lawful. In the State of Michigan for instance, Secretary of State Benson, without legislative approval, unilaterally abrogated Michigan election statutes related to absentee ballot applications and signature verifications. Nor did the state legislature ratify these changes. The Michigan Constitution provides that all registered voters have the right to request and vote by an absentee ballot without giving a reason; but on May 19, 2020, the Secretary took it upon herself to announce that her office would send unsolicited absentee-voter ballot applications by mail to all 7.7 million registered voters. At the same time, she falsely gave assurances that procedures were in place to ensure the accuracy and legality of the historic flood of mail-in votes. Nothing could be further from the truth, as she did the opposite and did away with protections designed to deter voter fraud. This is but one example. This apparent misconduct is contrary to Michigan law and contrary to the United States Constitution, which gives the state legislature of Michigan the sole power to regulate elections.

To repeat, the Constitution gives the sole power to make election-law changes to state legislatures rather than authoritarian elites sitting in state capitals. In addition, Defendant States failed to segregate ballots in a manner that would permit accurate analysis to determine which ballots were cast in conformity with legislatively set rules and which were not. And such errors were especially true for mail-in-ballots.

In other cases, Defendant States—according to the Bill of Complaint—have allowed rampant lawlessness to prevail. Alleged lawlessness includes the physical blocking and kicking out of Republican poll challengers; thousands of the same ballots run multiple times through tabulators; mysterious late night dumps of thousands of ballots at tabulation centers; illegally backdating thousands of ballots; signature verification procedures ignored; and more than 173,000 ballots in Wayne County, Michigan, which cannot be tied to a registered voter.

To be clear, the State of Texas Bill of Complaint presents a fraught question: Will the United States Supreme Court take this case involving an issue of original jurisdiction where the parties include two or more states and consider the well-grounded claims made by the State of Texas? One answer to this question can be found in Justice Thomas’ dissent in Arizona v. California, 589 U.S. ___ (2020) 150Orig Arizona v. California (02/24/2020) (supremecourt.gov). In Arizona v. California, the Supreme Court denied a motion for leave to file a Bill of Complaint, but Justice Thomas noted that while the Court has discretion to decline review in other kinds of cases, the Court does not have discretion to decline review in cases within the Court’s original jurisdiction that arise between two or more states. Why is this true? Justice Thomas answers this question by noting that the Constitution, in Article III states that “[i]n all Cases … in which a State shall be [a] Party, the supreme Court shall have original Jurisdiction.” This signifies that the Court has no more right to decline the exercise of jurisdiction, which is given, than to usurp that which is not given (See Cohens v. Virginia, 6 Wheat. 264, 404 (1821).

Election integrity and election security matter to the nation and to the American Center for Law and Justice. Please join our efforts to advance the impartial and exact execution of election law. The ACLJ believes that the United States is a republic, if we can keep it. Keeping it requires eternal vigilance and the mobilization of American citizens, including ACLJ members.

Join us in this fight.

Harry G. Hutchison

More Articles

Harry G. Hutchison is Senior Counsel and Director of Policy for the ACLJ. He has served as a Professor of Law at the Antonin Scalia Law School, George Mason University, and a Founding Fellow at the M.G. Robertson Global Centre for Law & Public Policy.

Harry G. Hutchison

Harry G. Hutchison is Senior Counsel and Director of Policy for the ACLJ. He has served as a Professor of Law at the Antonin Scalia Law School, George Mason University, and a Founding Fellow at the M.G. Robertson Global Centre for Law & Public Policy.

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PETITION

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Defend the Constitution and the Integrity of Elections

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