Posted by Curt on 12 December, 2020 at 2:29 pm. 2 comments already!


By Shipwreckedcrew

The short answer is “not much.”

The Court provided no meaningful guidance on whether it had any views on the substance of the allegations made by Texas against Pennsylvania, Georgia, Wisconsin, and Michigan.  Nor did it suggest who, if not Texas, might have a basis to assert violations of the “Electors Clause” by state and local officials.

The Order stated that Texas lacked standing, but unlike the circumstances in lower court decisions, it is not necessary for the Supreme Court to provide a reason for its conclusion in this regard.  Lower courts do so because their decision is subject to review and appeal to a higher court by the litigants.  Since that is not possible with a decision from the Supreme Court, there is no need for them to explain the “why” behind their decision — and they did not.

The issue of “standing” has well established legal “principles” that courts rely on at the outset of a case to determine whether the matter that is the subject of the complaint is properly brought in the Court in which it is filed.

These principles arise out of the “case and controversy” requirements of Article III of the Constitution which are at the foundation of the federal civil justice system.  In layman’s terms, it means that a federal court must sometimes make a decision as to whether the complaint concerns a real “claim” for which a judicial resolution and remedy is the only appropriate avenue for relief open to the plaintiff, and whether the plaintiff who has brought the claim is the correct party to do so. Does the plaintiff have a real and concrete interest in the outcome that is different from the interest of the public at large?

The decision on “standing” is a “judgment” based on the nature of the claim raised by the complaint, the nature of the plaintiff who has raised the claim, and the relationship of the plaintiff to the claim raised.

Also, and important to the Supreme Court, “standing” reflects respect for “separation of powers” by giving the Judicial branch a basis to reject efforts to resolve disputes through the courts that are, in actuality, political disputes that should be left to the political branches to resolve.

The language used by the Court yesterday was as follows:

“The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.”

That is a way of simply saying that what Texas has brought before the Court is not a “case” or “controversy” as those terms are used in Article III of the Constitution — at least not with Texas in the role of Plaintiff.

Does that mean that some other plaintiff might be able to make similar claims — not in “State v. State” litigation under the Supreme Court’s “original jurisdiction”, but as claims raised in lower federal courts by litigants who have suffered concrete harm from the same conduct that Texas has alleged?  In other words, is there still an avenue through which the actions of State and County officials which are alleged to have been contrary to the election laws of their states can be made into a federal claim by an appropriate plaintiff such that a federal court could grant some form of remedy?

I think the answer to that question is “Yes”, and the support for that answer is found in two federal appeals court decisions — one before the election arising out of Wisconsin, and another after the election arising out of Pennsylvania.  It is not impossible that the matter from Wisconsin could make its way to the Supreme Court prior to January 21, although it is quite unlikely.

But let’s deal with the Pennsylvania case first.  Bognet v. Pennsylvania was a case filed prior to the election by a GOP congressional candidate and four Pennsylvania voters seeking to challenge the decision by the Pennsylvania Supreme Court to extend by three days the period within which “mailed-in” ballots could be received and counted in the upcoming November election.  The complaint alleged, among other claims, that the actions of the Pennsylvania Supreme Court violated the “Electors Clause” of the US Constitution which grants only to the state “legislature” the authority to determine the “manner” of selecting Electors.

The district court denied the plaintiffs’ request for injunctive relief on the basis that they lacked standing and the Plaintiffs appealed to the Third Circuit Court of Appeals.

On the issue of the claims raised based on the “Elector’s Clause”, the Third Circuit held:

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