Texas Republican Attorney General Ken Paxton has brought a lawsuit which claims Georgia, Michigan, Pennsylvania, and Wisconsin have all violated the U.S. Constitution’s Electors Clause or, in the alternative, the Fourteenth Amendment. The complaint says that by allowing non-legislative actions to change the election rules governing the appointment of presidential electors, these states all made changes to various voting rules without legislation, which Texas says is forbidden by the Constitution. The petition asks for the U.S. Supreme Court to order new elections in the defendant states, or for an order requiring the relevant state legislatures to choose electors directly.

The complaint lists instances in each of the four defendant states where election laws were simply ignored or changed by officials or courts, not legislatures. According to Paxton, those actions and changes rendered the elections conducted by the defendants unconstitutional, chiefly because they violate the Electors Clause in the Constitution’s Article II, Section 1, and the Elections Clause in Article 1, Section 4. Paxton says: “States and their voters are entitled to a presidential election in which the votes from each of the states are counted only if the ballots are cast and counted in a manner that complies with the pre-existing laws of each state.”

Original Jurisdiction

The 154-page filing is atypical of Supreme Court cases because it rests on the court’s original jurisdiction. The Supreme Court is an appellate court. It does not conduct trials with witnesses but hears legal arguments on a record established in lower courts. Original jurisdiction is the exception to the rule. The Constitution’s Article III Section 2 says, “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.”

So if one state sues another state, they initially file their case right at the U.S. Supreme Court as Texas has here. The next question is whether the court will hear the case. Well before election day, this issue had been debated, including at the Supreme Court. Some justices believe the Supreme Court is obligated to hear any case filed by one state against another because the Constitution requires it, and others disagree. Justices who thought granting a hearing is mandated were in the minority the last time the issue came up, but the composition of the court has changed since then, so we don’t know how the court would rule on that issue now.

Bill of Complaint

In some circles on Tuesday, it was reported that the court had already agreed to take the case. That is not true. As SCOTUSblog’s Amy Howe put it, the court “has *docketed* the case, which is different from agreeing to hear. Docketing means that the case has met the filing requirements; the case has to be docketed for the justices to consider it.”

Writs of certiorari are what the Supreme Court issues when it grants a hearing in a case. That transfers the case from another court to SCOTUS for review. Since there has been no lower court filing here, a different process takes place. This type of filing is called a “Bill of Complaint,” but there is a catch – court rules require states not just to file such a bill, but they have to ask permission first, in the form of a motion. This motion must be granted before the complaint is accepted for review. This point is vital because it provides the first hurdle Texas must meet to win this case – it has to get the Supreme Court to agree to hear the case.

Howe also mentioned Justice Clarence Thomas’ dissent in 2016’s Nebraska v. Colorado. Nebraska sued Colorado over its “Rocky Mountain High,” for regulating marijuana like alcohol, and filed a motion for permission to have the court hear the case – and lost. Justice Thomas’ dissent from that ruling is a great pocket guide to the issue and his thinking on it. He wrote:

If this Court does not exercise jurisdiction over a controversy between two States, then the complaining State has no judicial forum in which to seek relief. When presented with such a controversy, “[w]e have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.”

Supreme Court practice is to hear cases when four justices agree that it should be heard. Per an order from the court, reply briefs from the states Texas sued are due in Thursday, December 10, by 3 p.m.

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