“How the Supreme Court Can Swiftly Dispose of the Texas Lawsuit Seeking to Overturn the Election”

Ilya Somin at Volokh:

Yesterday, the state of Texas filed a lawsuit essentially asking the Supreme Court to reverse the outcome of the presidential election in four key swing states—Georgia, Michigan, Pennsylvania, and Wisconsin, thereby potentially giving Donald Trump a second term he failed to win at the ballot box. The case has been roundly denounced by legal commentators as utterly lacking in merit. Prominent election law scholar Rick Hasen summarizes some of its defects and concludes that it may be the “the dumbest case I’ve ever seen filed on an emergency basis at the Supreme Court.” Co-blogger Jonathan Adler points out a variety of procedural flaws in the case. David Post highlights its reliance on bogus statistical “analysis.”

However, because this case is a lawsuit filed by one state against others, it falls within the Court’s “original jurisdiction”—the narrow set of cases that can be filed directly in the Supreme Court, without first being considered by lower courts. Therefore, the justices may not be able to reject it in the same way as they just refused to hear a GOP lawsuit seeking to overturn the result in Pennsylvania.

At the same time, however, there is precedent for the Court dispensing with state vs. state original jurisdiction lawsuits without a full hearing or opinion. In 2016, that’s exactly what the Court did with a lawsuit filed by Nebraska and Oklahoma seeking to force neighboring Colorado to rescind its legislation legalizing marijuana under state law. The justices disposed of the Nebraska-Oklahoma lawsuit in a one-sentence order. Here it is in all its glory:

The motion for leave to file a bill of complaint is denied.

Nothing prevents the Supreme Court from doing the same thing with the Texas case (which some other red states might sign on to)….

In a dissent joined by Justice Alito, Justice Clarence Thomas argued that the Court lacks the authority to dispense with original jurisdiction cases in such a cursory fashion. I think he makes some good points, particularly that—unlike with virtually all other cases—courses within the exclusive original jurisdiction of the Supreme Court cannot be heard by lower federal courts, so SCOTUS is the only possible venue for them. But Thomas recognized that the Court’s disposition of the marijuana legalization case was backed by longstanding precedent, under which the justices often dismiss bogus original jurisdiction cases without full consideration on the merit…

Since the Court issued this 6-2 ruling in 2016, three new justices have been appointed by Trump, including Neil Gorsuch who filled the seat vacated by the death of Justice Antonin Scalia a few weeks before the Oklahoma-Nebraska case was decided. If all three of the new justices support Thomas’ position, the Court might not be able to dispose of the Texas case quite as easily. But even in that event, it could still deal with it in a short per curiam opinion, and does not necessarily have to go through extensive briefing and oral argument. There is no statute or constitutional rule requiring the latter.

In addition, I doubt that there will be a majority in favor of reversing longstanding precedent in this field. In an age of grandstanding state AGs, the Court might be inundated with numerous bogus state vs. state lawsuits if all had to be given full consideration, and thereby got the attendant “free” publicity.


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