No. The relief they are seeking is to send it back to the legislatures to appoint electors by whatever lawful means they could appoint them (hint, hint, just vote to appoint Trump electors).
Based on a bajillion cases and a line of case law that is undisputed this isn’t allowed!!! And the suit should be thrown out quickly. 9-0.
Responding with full awareness of the fact that you are playing devil’s advocate here.
Part of PA’s response was that the process being challenged —a signature verification requirements —- was never covered at all by any state legislation. Their election code does not authorize county election boards to reject ballots based on an analysis of the signature. So, any attempt to impose such a requirement without going through the legislative process would’ve been …pretty much exactly the thing Texas is accusing them of.
I like to check in on Trumpers occasionally and see what reality-denying stuff they’re into. They’re saying that SCOTUS rejected the Pennsylvania case because they knew this one was coming, and this is the big, juicy case that will let them overturn the election in one fell swoop. It’s much more efficient that way, you see.
Also, they’re sure that Clarence Thomas is dying for the court to take this so he can get “revenge” on Biden. I saw this little fantasy in a YouTube comment:
Thomas: So we meet again, Mr. Biden.
Biden: Who are you?
Thomas: Karma.
Oh, and there’s lots of talk about “civil war” if SCOTUS doesn’t do their job. I assume the “civil war” will consist of Trumpers standing on street corners waving signs until they get cold and go inside.
The Supreme Court may not have considered the question, but the 5th Circuit heard such an argument in 1945. They rather forcefully said it is a political question not justiciable by the courts. Saunders v. Wilkins, 152 F.2d 235, 237-238 (1945).
Relevant quote, emphasis mine
“It is the contention of the appellant, however, that even if the Virginia poll tax law does not offend the first section of the Fourteenth Amendment, nevertheless the statute falls within the terms of the second section of the Amendment by abridging the right of citizens of the United States to vote, and therefore the Apportionment Act of Congress of 1941 and the Redistricting Act of the State Legislature, which failed to take into account the effect of the poll tax act, are invalid with the consequences outlined above. We think that this contention presents a question political in its nature which must be determined by the legislative branch of the government and is not justiciable. It is well known that the elective franchise has been limited or denied to citizens in various States of the union in past years, but no serious attempt has been made by Congress to enforce the mandate of the second section of the Fourteenth Amendment, and it is noteworthy that there are no instances in which the courts have attempted to revise the apportionment of Representatives by Congress.”
[…]
“It is our opinion that the question involved in the pending case, viewed from either aspect, will be seen to be political. It is quite clear that we lack the means of deciding whether or not Virginia is entitled to nine Representatives in Congress upon the information before us. It is true that the complaint contains the allegation that the effect of the Virginia poll tax is to disenfranchise sixty per cent of the citizens within the State. But we have no means of knowing the effect upon the suffrage of the restrictions imposed by the statutes of other states in the form of poll taxes or other qualifications for voting. We could not say, even if the question lay within our power, whether Virginia is entitled to nine out of the total number of four hundred and thirty-five Representatives provided by Congress without ascertaining the number to which other states are entitled when the provisions of the second section of the Fourteenth Amendment are taken into consideration.”
“It is equally true that the court is without power to reduce the number of Representatives fixed by Act of Congress or to decide in case the number of Representatives from Virginia should be reduced, what disposition should be made of the vacancies thus caused, or to what states they should be allotted in order to maintain the total ordained by Congress. It is clear that there can be no finality on any of these questions until Congress exercises the authority and performs the duty entrusted to it by the Constitution. It is true that the pending case takes the form of a suit for damages against the Secretary of State for failure to certify the candidacy of the appellant, but in order to fix liability upon the Secretary, it would be necessary for this court to hold that notwithstanding the Act of Congress, the number of Representatives from Virginia and therefore of other states in the Union as set out in the Act of Congress is erroneous and should be changed. This determination we have no power to make.”
That “someone” would be Congress, who is literally granted the power to enforce section 2 by section 5 of the same amendment.
~Max
It still seems as though that is the sort of thing that only a voter in an affected state would have standing to challenge, though.
OK, fair enough. With this in mind, I note the following from an AP analysis of this subject from today:
So, sounds to me as though if Texas prevails, it must throw out its election results as well, correct?
I assume it will consist of Trumpists standing on street corners waving guns. Or showing up with guns at the houses of people they decide to target.
The rejection of this lawsuit could definitely be a catalyst. Less of a civil war than a series of acts of domestic terrorism, though.
The people putting out these narratives are leading a certain group of their followers farther and farther from reality. It is dangerous in itself, and it will be no surprise when those people take drastic action based on their now-shared delusion.
Honestly, I think if we have to let our state legislature decide, it will pretty much be the same as the popular vote was. That’s what they are counting on–the Trump-voting states that changed their voting laws probably all have red state legislatures.
At the same time, I think a lot of Texans would be upset at the principle of the thing.
So, not automatic, then.
And that there is precedent from 1945 that a poll tax that disenfranchised people did not result in a district court calling for representatives to be reapportioned is not without some merit.
It still does not reflect the exact circumstance of a state deliberately disenfranchising people, and it is also not a SCOTUS ruling.
If a state is blatantly violating the 14th Amendment, and congress does not act, what other remedy could one possibly seek?
I do not see anything in the First Amendment the explicitly grants a cause of action either. Nor the second through 13th. Nor the 15th through 27th. It is really only the 14th that states a specific penalty for violating it. It says that congress shall have the power to enforce the provisions, it doesn’t say that the courts will not.
Could you sue congress itself for violating the 14th amendment if they did not enforce the reapportionment constitutionally necessary as a penalty for disenfranchisement?
I fear that on Monday, some of these nuts are going to start shooting up the capitols where the electors are casting their ballots. Sad to say, I think the likeliest place this will happen is in Michigan.
Notice that even in this thread, the most gallant (thankess) effort of counsel to get the arguments in support to make some sense, after paring away most of what is just nonsense and misdirection and smokescreens is left with asymptotically approaching bupkus to work with. No wonder Rudy wanted $20K per day.
I somehow don’t think that’s what the Founders had in mind with regards to a well armed militia’s role to defend a free state.
Specifically, the four named states do. That’s exactly the point.
Hey, for, what, 1880 to 1964?, a whole big chunk of the nation got away with defying it with no penalty whatever.
Interesting editorial on SCOTUSblog:
Right. But my point is that saying “no, u” back to Texas won’t help.
Definitely. There was the plot to kidnap the governor, and the head of elections there had armed “protestors” show up at night, outside her house, yelling obscenities at her in front of her 4-year-old.
“This business will get out of control. It will get out of control, and we’ll be lucky to live through it.”
A little exaggeration, but I do think these lawsuits, and this one in particular, are incredibly dangerous, and I will truly be very surprised if no shots are fired, and there are no armed confrontations connected with the ideas embodied in these suits.
Asking this again here since it got no response in the other thread:
I haven’t read the briefs, but I’m sure they have found something semi-coherent to explain why that is different. But as I said, it is a terrible lawsuit legally speaking. It is why so many big time firms turned it down because no matter the money, they don’t want to put their names on such shoddy legal reasoning.
I feel like it’s verging on off topic here, and I’ve been trying to keep my posts on the subject tied to the subject of this thread. If you start a new thread, or post in one of the threads about “civil war” type speculation, I would probably chime in on your questions.
It was actually 6-2 because Scalia had died and not yet been replaced. The two were Thomas and Alito. This was in 2016 and it was Nebraska and Oklahoma that sued Colorado. Last month Oklahoma approved Medical Marijuana.
I cited the 5th Circuit, it was actually the 4th Circuit. Both are courts of appeal though, just one level under the Supreme Court.
The law that implements Amendment XIV section 2 does exist and is codified under Title 2. The law says representation shall be reduced. It is not ambiguous. That being said, reapportionment does not take place immediately, only after the decennial census. See Article I of the Constitution. Even if there was standing to sue someone under that section, the relief being sought would not invalidate any part of the current election.
Well, only two bodies possibly have the power to enforce that law. First is Congress which has the power to enforce it directly from the amendment. Second, possibly, is the courts who can hear cases and controversies. Any hypothetical claim of action would require that those who enforce the law neglect their duty, that such neglect is a legal harm to your rights, and that the court has the power to provide a remedy. Both of these legs fall in the present case: first, Congress has not reapportioned yet so the case is premature; second, unless you claim that your representation is in any way affected, you have no harm; third and most importantly, the court has no power to tell Congress how to reapportion the House. See the decision I cited previously.
To top it off, you can’t sue another state on a theory that Congress didn’t do its job.
~Max