It looks like we have a new leader in the “craziest lawsuit filed to purportedly challenge the election” category:

The State of Texas is suing Pennsylvania, Georgia, Michigan, and Wisconsin *directly* in #SCOTUS.

(Spoiler alert: The Court is *never* going to hear this one.)
Although the Supreme Court has “exclusive” jurisdiction over disputes between states, it does not automatically hear all such cases.

Rather, states have to receive “leave to file,” which usually requires showing that there’s no other forum in which these issues can be resolved.
Here’s the full (and insane) filing:

texasattorneygeneral.gov/sites/default/…
And as others have pointed out, it’s more than a little telling that Kyle Hawkins — the Texas Solicitor General, who represents the State before #SCOTUS — is not on the filings.

Good for him for refusing to associate himself with this utter and indefensible nonsense.
Anyway, it takes five votes to grant a motion for leave to file — which isn’t going to happen.

And it’ll take some time. So chalk this up as mostly a stunt — a dangerous, offensive, and wasteful one, but a stunt nonetheless.
For more, here's my #thread on the Supreme Court's "original jurisdiction":

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More from @steve_vladeck

8 Dec
1. Texas is trying to sue PA, GA, MI, and WI to challenge their election results *directly* in #SCOTUS.

How can it do that, how does that work, and is this going anywhere?

Here's a quick #thread on the apex of legal arcana:

The U.S. Supreme Court's "original jurisdiction."
2. One of the reasons *why* the Founders created a Supreme Court was to resolve interstate disputes (e.g., over borders, water rights, etc.).

Because lower courts might be biased, #SCOTUS was given "original" jurisdiction in such cases — allowing such suits to *start* there.
3. And today, in suits between states, #SCOTUS's original jurisdiction is *exclusive,* meaning that lower state and federal courts *lack* the power to hear disputes between two or more states:

law.cornell.edu/uscode/text/28…
Read 11 tweets
6 Dec
1. A lot of reactions today to Justice Alito moving up the deadline for PA to respond to @MikeKellyPA's application for an emergency injunction to throw out PA's certification of its presidential electors.

Here's a quick #thread on why none of this matters—or is going to matter:
2. First, there's the obvious point: Even if this gambit somehow succeeds (spoiler: it won't), the worst-case scenario is that PA's electoral votes get tossed.

In that case, Biden would *still* receive 286 electoral votes when the Electoral College votes on 12/14. He needs 270.
3. Now, let's get to why the Kelly suit isn't going anywhere. First, it was dismissed by the PA Supreme Court based upon a state procedural bar ("laches"). #SCOTUS does not have jurisdiction to review state court decisions that rest on such "independent and adequate" state rules.
Read 14 tweets
27 Nov
Here is the unanimous, 21-page opinion by the Third Circuit rejecting the Trump campaign's appeal in the Pennsylvania case, written by (Trump appointee) Judge Bibas:

justsecurity.org/wp-content/upl…
As Judge Bibas writes:

"Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here."
The Trump campaign has the right to ask #SCOTUS to review this decision, and it has the right to ask the Court for an injunction pending appeal. But as Judge Bibas's opinion makes clear, try as they might, this lawsuit has no chance of succeeding.
Read 4 tweets
12 Nov
This is ... different:

The Trump campaign has filed a wide-ranging lawsuit challenging the counting of votes in Wayne County (Detroit) not just in a federal district court in Michigan, but in the U.S. Court of Federal Claims in D.C. — which has *no jurisdiction* in such cases:
Here's the complaint. I'm not kidding: They literally filed the W.D. Mich. complaint in a different court that only hears monetary claims against the federal government:

justsecurity.org/wp-content/upl…
To be clear, I don't think this is malicious; it seems pretty clear it's just a filing error. But it says a lot to me about where we are that we're seeing these kinds of errors.
Read 5 tweets
9 Nov
There’s currently a Senate-confirmed Deputy Secretary of Defense — David Norquist. Under 10 U.S.C. § 132(b), *he* is supposed to become Acting Secretary in the event of a vacancy.

Unless Trump fired him, too. Image
To be clear, *if* the Federal Vacancies Reform Act allows the President to appoint someone else as Acting Secretary notwithstanding § 132(b), Miller is a valid choice (because of his Senate confirmation). But it's not at all obvious that the FVRA *does* override the DoD statute.
The last time this came up, Trump named as Acting Secretary Patrick Shanahan (who was already serving as the Deputy Secretary), which avoided the issue:

Read 5 tweets
28 Oct
1. An attempt to clear up confusing public discourse about counting ballots, in five tweets.

When Trump talks about no "counting" after Election Day, he could mean one of two things:

A) No tabulating *at all* after 11/3; or
B) No counting of ballots *received* after 11/3.
2. Claim A is just insane. As I've explained in detail in another thread, *no* state finishes counting all of its ballots *on* Election Day, and every state but one waits at least a week before fully certifying their results. Federal law is clear on this:

3. And so, when Trump says that courts are siding with him about no counting after Election Day, he's just flat-out wrong.

Claim B is trickier because rules for when absentee/mail-in ballots must be *received* necessarily vary by state, as there's no uniform federal standard.
Read 5 tweets

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