Thread by @Teri_Kanefield

(Thread) How did the #TexasLawSuit go off the rails?

Let me count the ways.

texasattorneygeneral.gov/sites/default/…
First, given the allegations, the remedy is [to say the least] inappropriate. The better word is "insane."

The allegations are that:

2/ In other words, the allegation is that state election officials violated equal protection and usurped the power of state legislatures to make rules.

There is no accusation that any voters committed fraud.

The complaint is in how the states carried out their elections.

3/ The remedy sought is to disenfranchise every single voter—not only in those states but in the entire country—which is what would happen if those four states were thrown to the Republicans.

Even if the allegations were true, this is an absurd remedy.

(Plus it's not true)

4/ These same accusations have been rejected by countless other courts.

The remedy punishes voters who did nothing wrong by taking away their right to vote.

Analogy: “The bathroom tile is crooked, so pull down the building.” Plus, the tile isn't crooked.

5/ The lawsuit, filed on December 8, is untimely.

Federal election law states that election disputes must be resolved by “safe harbor” day, six days before the state electors meet to vote in their state capitals.

This year Safe Harbor Day was December 8, 2018.

6/ Texas (actually, Paxton) tries to get around that by asking SCOTUS to delay the deadline.

Why did they file so late? No doubt because a few dozen similar lawsuits raising these same issues failed, so this was a last, final, desperate measure.

7/ This brings us to laches, the principle that a claim will not be enforced if a long delay in asserting the right is prejudicial to the opposing party.

dictionary.law.com/Default.aspx?s…
The complaint alleges problems with how officials carried out the election. Why wait until now?

8/ Waiting until now means the problem can't be fixed. All that can be done is disenfranchise all the voters.

“Dozens of other courts already rejected this claim,” is not a good reason for untimeliness, particularly because the Court prefers these things to work their way up.

9/ Next reason: The evidence is hooey. Example of evidence: “statistical improbability” that Biden won those states.

So the argument is, “We don’t think that Biden could have won, so set aside the election and declare Trump the winner.”

10/ Next: Standing: The plaintiff must suffer an injury as a result of defendant’s behavior. law.cornell.edu/wex/standing

Paxton’s says Texas voters are harmed when a national election goes wrong, which basically says Texas doesn’t like the results in other states. Lame.

11/ Plus it opens the door to states suing each other over anything.

Denying standing would be an easy way for SCOTUS to get rid of the case.

Next problem: The Supreme Court has original jurisdiction over disputes between the states, but only when other avenues aren't available

12/ In this case, Texas could (if these were valid complaints) have sued the election officials in a lower court.

Why didn’t they? Well, because other people already did and lost, and because they’re out of time.

13/ Here’s where they say they have to sue all four states, otherwise they can’t change the outcome of the presidential election⤵️

Remember back when conservatives complained about judicial activism and federal courts usurping the role of legislatures?

14/ The Constitution specifically gives Congress the authority to regulate elections.

Paxton wants the Supreme Court to set down law for all future elections, even though the Constitution gives this power to Congress.

Hypocrisy, let me count the ways.

15/ A cynical idea underlies this case: The idea that there is no rule of law. Judges vote based on which “team” they are on. Trump’s idea is that the Supreme Court is on his team, so if given a pretext, they will throw out the election and give him a second term.

16/ To be clear about what this ruling would do: It would be a judicial coup d’état.

Trust me: “conservative” justices nonetheless have no desire to install a dictator, which is what would happen if Trump was given a second term under these circumstances.

17/ This SCOTUS rejected “unitary executive theory,” when Trump claimed that neither Courts nor Congress could interfere with how he runs the executive branch.

He said, “Article II says I can do whatever I want.”

18/ Now he is asking SCOTUS to ignore precedent and federal law and overturn an election based on vague unsupported allegations.

He wants them to put him above the law.

They won't do it. What incentive do they have to literally install a dictator? None.

19/ I knew there were more!

I thought of another problem with this lawsuit.

Texas is asking that the election results in these states be decertified and that the legislatures (which happen to be Republican-led) select the winner.

While the Constitution gives . . .

20/ . . . state legislatures the authority to allocate their electoral votes as they wish, every state has laws giving that power to the voters.

The Supreme Court has said that the rules can't be changed too close to an election. Even Kavanaugh in the recent WI case. . .

21/ . . . in his concurring opinion that the Supreme Court has "repeatedly emphasized that federal courts ordinarily should not alter state election laws in the period close to the election."

Texas is asking that the rules be changed AFTER an election.

22/ So AFTER an election, TX is asking the Supreme Court to change how these states conduct their elections, and remedy disputes, by ordering the legislatures pick the winner instead of the voters.

I put this thread on my blog, here: terikanefield-blog.com/how-did-the-tr…

For people asking: It's possible we will know whether the Supreme Court will hear this case tomorrow.

That's the question first: Will the Supreme Court hear the case?

I did a follow up blog post, here: terikanefield-blog.com/overturn/