Texas Sues: Looks Like A Game Changer

First--I'll be away from the blog for about three hours, starting in one hour. Comments will be enabled upon return.

The Texas lawsuit looks like it could be a real game changer--legally, of course, but perhaps most importantly, politically. We've always spoken of the lawlessness of the Dems in the conduct of elections, but when things reach this point the issue is political, in the big picture sense of the word: It's really about our constitutional order, and that's why Texas is alleging violations of the US Constitution--the compact and the glue that holds this country together.

First and foremost, this lawsuit brings all four of the named states--as well as Texas--before the SCOTUS. Immediately. My reading of this is that the elections in these states cannot be certified or, alternatively, any certification should be held to be without effect (a bit more below).

Breitbart has a good account of the lawsuit, which is very straightforward in its essentials. The lawsuit alleges that four states (PA, MI, GA, WI) and certain counties within those states violated the US Constitution in two respects in their conduct of the presidential election.

First, they violated the Electors Clause of Article II of the Constitution when executive or judicial officials in the states changed the rules of the election without going through the state legislatures. The Electors Clause requires that each State “shall appoint” its presidential electors “in such Manner as the Legislature thereof may direct.”

Here's the text of Article II (in relevant part):

Article II, Section 1: Elections 

The executive Power shall be vested in a President of the United States of America.

He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

...

This is exactly the provision that the feckless John Roberts--in the 4-4 pre-Justice Amy SCOTUS--tried to sidestep, by saying that what the PA Supreme Court did with regard to federal elections held in PA was no concern of the SCOTUS. Texas is telling Roberts and every other justice on the SCOTUS that what the corrupt political machines within portions of these four states have done to the Constitution IS TEXAS' CONCERN. And that means that it better become the SCOTUS' concern, too, because Texas doesn't stand alone in this.

If states are allowed to alter the rules set by the US Constitution, then the US Constitution has become a dead letter. That's the subtext to this allegation, and the SCOTUS cannot be unaware of that. 

Next (edited from Breitbart):

Second, when individual counties in each of the four states changed the way that they would receive, evaluate, or treat the ballots as opposed to the way this was done in other counties, they violated the Equal Protection Clause of the Constitution. This was the holding in Bush v. Gore: Voters of every state have the constitutional right to have their ballots treated equally from one county to another. To do otherwise violates the Equal Protection Clause of the Fourteenth Amendment.

Again, the 14th Amendment, in relevant part:

14th Amendment

Section 1

... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Once again, if individual states are allowed to flout this provision, then our social compact--the US Constitution--is effectively a dead letter. This is certainly the lesson of the struggle for equal civil rights for all persons. That struggle led us through a bloody Civil War and much else since then. The justices all understand that.

Texas, as an equal member of these United States, has a right to expect that the SCOTUS will enforce the Constitution as against all other states. To do otherwise violates the nature and purpose of the Constitution. As a remedy, Texas is asking that the Supreme Court remand the appointment of electors in the four states back to the state legislatures of those respective states.

Texas has drawn a line, whether most of the country understands that or not--and if the justices attempt to dodge or finesse these issues they will do so at great risk to the Union. The justices have to be able to sniff the scent of secession in the air. It's a serious thing when one state alleges Constitutional grievances as basic as free and fair elections and equal protection of the laws against other states. But we all know that there are other grievances--grievances against the recklessly lawless political party that is behind this flouting of the Constitution, with more harm openly threatened or promised. Here is Don Surber's list of those grievances, and it's only a partial list (the first item is Surber quoting sundance):

"No amount of media spin is going to change the reality of that political landscape."

They stole our jobs by shipping them overseas.

They stole our lives by using the pandemic to restrict our movement.

They stole our right to vote.

All of this would be serious, no matter whether it was Rhode Island making the claims. But that Texas has brought these constitutional grievances before the SCOTUS raises the seriousness to potentially existential levels. Texas brings these grievances as the representative of not less than half the nation--in terms of population, land area, and economic importance--and as an economic powerhouse.

We live in interesting times.

ADDENDUM: How the SCOTUS tries to resolve and defuse this constitutional crisis is beyond my speculative pay grade. But Texas has certainly upped the ante.