Just before midnight Monday (Dec. 7), Texas Attorney General Ken Paxton, on behalf of Texas, filed a lawsuit directly with the federal Supreme Court claiming that Georgia, Michigan, Pennsylvania and Wisconsin, were unconstitutional in the presidential election.
This case is more important than any previous election-related litigation because the Texas lawsuit presents a purely legal question and does not require proof of a specific case of fraud; it is sufficient to prove that the four states violated the Constitution.
In the court filing, Paxton claimed that “unconstitutional rule changes have opened the door to all manner of election irregularities” and that the four states “flagrantly violate the constitutional provisions governing the appointment of presidential electors. He asked the Supreme Court to bar the state Electoral College from voting until the case is argued.
Kris W. Kobach is an expert on immigration law and elections. He served as Kansas Secretary of State from 2011-2019. From 1996 to 2011, he was a professor of constitutional and immigration law at the University of Missouri-KC.
According to Kris W. Kobach, the four states, one, changed their voting rules without a state legislature, and two, failed to ensure that every county in the state was treated equally on the ballot.
Under U.S. law, if a state sues another state, it has to go to the federal high court, and the Texas attorney general sues the other four states on behalf of Texas.
The fact that Texas sued the other four states because Texas believed it was following the constitutional election process, and these four states changed the way the election was conducted, is not only a constitutional issue, it is also unfair to Texas.
The specific constitutional interpretation is.
The Electors Clause of the Constitution requires the states to “appoint” presidential electors “in such manner as their legislatures may direct. In the early days of the Union, most state legislatures appointed presidential electors directly, without popular vote; this changed in the first decades of the 19th century, but the constitutional principle remained the same: state legislatures make the rules, and only state legislatures make the rules, whether they appoint state electors by vote of the state legislature or by popular vote.
Kobach noted that four states have violated the Electors Clause of Article II of the Constitution by having state executive or judicial officers change the election rules without the approval of the state legislature. In Pennsylvania, the Supreme Court extended the deadline for receiving mail-in ballots by three days, which turned into a state court making general election rules in violation of the Voter Clause of the Constitution. In Georgia, the Secretary of State and the Democratic Party of Georgia entered into a compromise settlement and release agreement (i.e., a consent decree) in response to a lawsuit and modified the signature verification requirements under Georgia law, a rule change that also violates the Voter Clause.
The second unconstitutional issue is that in each of the four states there are counties that have changed the way they receive, evaluate, or process ballots. In Bush v. Gore, two decades ago, two Florida counties were ruled by the Supreme Court to have violated the Equal Protection Clause of the Fourteenth Amendment because they handled their ballots differently – voters have a constitutional right to have their ballots counted in each county. It needs to be treated the same way. In Wayne County, Michigan, election officials ignored state law by refusing to allow supervisors to participate in the vote count. Other counties in Michigan have complied with state law. This situation would be a violation of the Equal Protection Clause. In Wisconsin, the administrator of the Milwaukee Board of Elections ignored state law by instructing election officials to write the witness’s address on the envelope containing the mailed ballot, which became a valid ballot, while the ballot without the witness’s address was invalid in other counties in Wisconsin, leading to the problem that counties in Wisconsin treat ballots differently.
Thus, the Texas lawsuit is a purely legal question that does not depend on disputed facts, but only requires proof that the four counties being sued are unconstitutional in order to prevail.
Recent Comments