Update (1006ET): The state of Pennsylvania has replied to the Texas lawsuit, arguing that it doesn’t actually address Act 77 – a 2019 statute which allows voters to cast mail-in ballots for any reason.
Pennsylvania also argues that Texas doesn’t articulate how ‘massive disenfranchisement’ of voters by tossing out the results of the election ‘would accord with the Due Process Clause, which requires the counting of votes cast in reasonable reliance on existing election rules,’ and that the case at hand wouldn’t result in a ‘circuit split’ – when two or more different circuit courts of appeals might rule differently on the same legal issue (and is one of the factors the Supreme Court uses when deciding to take cases).
PA is also arguing that Texas, or anyone, has had since 2019 to object to Act 77, which violates the ‘doctrine of laches.’
Pennsylvania files response at SCOTUS objecting to petition stating mail in ballots should be disallowed. Arg:
1) No Circuit split
2) Elections & Electors Clause challenges to Act 77—is not actually presented by this case
3) State law laches no precedenthttps://t.co/B4IX8Yqfvz— Cate Long (@cate_long) December 8, 2020
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The state of Texas filed a lawsuit at the US Supreme Court against Georgia, Michigan, Pennsylvania and Wisconsin on the grounds that various changes to their voting rules or procedures – either through the courts or via executive actions – violated the Electors Clause of the Constitution because they did not go through the legislatures.
Texas also argues that differences in rules and procedures in different counties within the same state violates the Constitution’s Equal Protection Clause, and that “voting irregularities” occurred in these states as a result.
The lawsuit, filed shortly before midnight on Monday, asks the Supreme Court to allow their legislators to directly appoint electors, according to Breitbart.
From the filing:
Certain officials in the Defendant States presented the pandemic as the justification for ignoring state laws regarding absentee and mail-in voting. The Defendant States flooded their citizenry with tens of millions of ballot applications and ballots in derogation of statutory controls as to how they are lawfully received, evaluated, and counted. Whether well intentioned or not, these unconstitutional acts had the same uniform effect—they made the 2020 election less secure in the Defendant States. Those changes are inconsistent with relevant state laws and were made by non-legislative entities, without any consent by the state legislatures. The acts of these officials thus directly violated the Constitution.
…
This case presents a question of law: Did the Defendant States violate the Electors Clause by taking non-legislative actions to change the election rules that would govern the appointment of presidential electors? These non-legislative changes to the Defendant States’ election laws facilitated the casting and counting of ballots in violation of state law, which, in turn, violated the Electors Clause of Article II, Section 1, Clause 2 of the U.S. Constitution. By these unlawful acts, the Defendant States have not only tainted the integrity of their own citizens’ vote, but their actions have also debased the votes of citizens in Plaintiff State and other States that remained loyal to the Constitution.
Texas was able to approach the Supreme Court because Article III grants it status as the ‘court of first impression’ where it has original jurisdiction, such as when two states are in dispute, according to the report.
