The court of public opinion and numerous courts of law have been engaged in a heated dispute since a mysterious turn of events in the wee hours of November 4 altered President Trump’s substantial lead into a small one for Joe Biden. This turnabout sparked a battle royale regarding the legitimacy of ballots in several swing states that has now landed at the feet of the nine justices who sit on the U.S. Supreme Court.
Thus far, state and federal courts have put down the rebellion by rejecting myriad legal arguments brought by an array of complainants in several states. However, the time is nigh for the Goliath of courts to weigh in on the curious events of election night – and all of America awaits its decision with bated breath.
Of course, the Supreme Court will not determine who is the winner of the election, but it may decide whether Mr. Trump will live to fight another day — or be forced to call it a day.
Lone Star State to the Rescue?
This week, the state of Texas brought a lawsuit forward by Attorney General Ken Paxton “which claims Georgia, Michigan, Pennsylvania, and Wisconsin have all violated the U.S. Constitution’s Electors Clause or, in the alternative, the Fourteenth Amendment,” as Legal Affairs Editor Scott Cosenza wrote for Liberty Nation. To boil it down, Texas is making the case that election rules that were not made by the legislatures in these states violate the U.S. Constitution.
This is all well and good, but where things get dicey is in regard to the remedy for such a constitutional violation. The Texas petition suggests two options as a means of resolution: Either new elections should be ordered in these states or state legislatures should be permitted to choose electors directly. This ask is a heavy lift – even for the U.S. Supreme Court – and legal scholars caution that it would be something the high court would be loath to do.
The Pile On
Missouri filed an amicus brief, asking the Supreme Court to take the case and side with Texas. Alabama, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and West Virginia all signed on to that document. Arizona’s attorney general filed separately for his state in support of the Texas complaint.
In yet another filing, Ohio asked the court not for a ruling in favor of either side, but to determine the proper meaning of the Constitution’s Electors Clause. Its motion cited the “need for a Supreme Court ruling, at the earliest available opportunity, on the proper application of the Clause to cases in which state courts or state executive officers alter election rules in presidential elections.”
Donald J. Trump, individually, as well as the states of Missouri, Arkansas, Louisiana, Mississippi, South Carolina, and Utah, have also filed for permission to “intervene” in the case. The status they seek, of intervenor, would put them in the legal position as a party to the case. Right now, for instance, Texas could drop the case, and that would be the end of it. If any other state or Trump held intervenor status, however, they could prevent such an action.
Pins and Needles
Thus far, the court of public opinion shows the American people are deeply divided in whether they believe this year’s contest was a free and fair election. A poll conducted by Rasmussen Reports this week revealed that “47% say the Democrats stole voters or destroyed pro-Trump ballots in several states to ensure that Joe Biden Would win.” Another 49% “consider that unlikely,” according to the pollster.
Court watchers maintain that public opinion would not factor into a Supreme Court decision regarding the election. And if past is prologue, who nominated whom to the court will not sway the justices either. So where does the rubber meet the road in trying to divine what the Supremes will do?
If the high court takes the case, a decision for Trump will likely be based on how convinced justices are that the remedy Texas seeks is appropriate. Justices might agree that the defendant states acted outside the law, but still decline to order a new election or have state legislatures decide who the electors will be. Because of the stakes involved and the timing of the election process, the Supreme Court is likely to issue rulings or orders in this case sooner than they otherwise would. That said, the court keeps its own schedule.
It is unclear what, if any, legal options would be open to the president should the Supreme Court not agree to hear the Texas case. In a practical sense, it would mean that doing nothing could mean everything in this contentious battle for the White House.
~ The filings in this case are coming in at a furious pace. You can check the U.S. Supreme Court’s docket page here for the very latest, and to stay on top of any changes.
Scott D. Cosenza, Esq. contributed to this report.
Read more from Leesa K. Donner.
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