Must-read Lisa Manheim: “Texas can’t block votes cast in other states. Absurdly, it’s trying.”

Lisa Manheim in WaPo:


The litigation is legally incoherent, factually untethered and based on theories of remedy that fundamentally misunderstand the electoral process. At the core, it is an uninspired retread of the many state-level claims that already have imploded since Nov. 3. Texas has simply delivered these defective claims in an even worse package.

Among the more novel flaws afflicting this lawsuit is that Texas should not have filed it. Texas does not have standing in federal court to vindicate the voting rights of other states’ voters — much less standing to undercut the rights of those voters. Independently, Texas officials should not have filed these claims directly in the Supreme Court. Filing directly is improper because other courts have been available to hear claims of this nature — and, indeed, other courts have heard and repeatedly rejected them.

Yet another, separate problem with this lawsuit relates to timing. Even if the claims were otherwise valid, Texas should not have brought them so late in the process. A fundamental principle of election law involves what’s called laches, which is a principle that prevents litigants from filing challenges after an election when they could have been brought beforehand. This principle helps to ensure that voters, when casting their ballots, can rely on the rules set in place. Texas has filed its lawsuit over a month after the 2020 elections — and on the date of the safe harbor deadline, no less, which provides further assurance that Congress will accept the electoral votes of any state that has completed its post-election processes. This lawsuit runs headfirst into a veritable wall of laches.

 pile on further, the lawsuit demands a particularly inappropriate remedy: that the Supreme Court tell other state legislatures what to do. It appears impossible to square this extraordinary demand with basic constitutional principles, much less the Supreme Court’s recently strengthened conception of states’ rights.

Each of these problems ensures that Texas’s lawsuit will fail. But it would have failed anyway, for the many reasons that so many lawsuits filed after the 2020 elections have failed. Like the others, this lawsuit seeks to invalidate the votes of a wide swath of people: here, some 20 million — 20 million — Americans across four states. And like those other lawsuits, it premises this outrageous request not on an airtight legal theory based on solid evidence, but instead on the opposite. Its substantive legal arguments make no sense. It seems to imply, for example, that the 14th Amendment precludes Wisconsin from using drop boxes and requires Georgia to empower its officials to unilaterally reject ballots. (It does neither.) Many of these arguments, in turn, are based on factual allegations that are inflammatory and not based in reality — and that repeatedly have been debunked. It is telling that the name of the Texas solicitor general, the state official typically in charge of litigation before the Supreme Court, does not appear on these filings at all. One wonders if he was too embarrassed to sign.

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