On December 8, 2020, the Attorney General for the State of Texas, Ken Paxton, filed a lawsuit on behalf of Texas against four other states claiming that these states violated their own laws and the ir... View MoreOn December 8, 2020, the Attorney General for the State of Texas, Ken Paxton, filed a lawsuit on behalf of Texas against four other states claiming that these states violated their own laws and the irregularities are now affecting Texas and its voters in their right to cast votes in the selection of our President: Pennsylvania, Georgia, Michigan, and Wisconsin.
Texas�s filing in the Supreme Court of the United States has effectively eliminated the Safe Harbor Provision worry in each of the named states. The U.S. Code (3 U.S.C. �5) provides that if election results are contested in any state, and if the state, prior to election day, has enacted procedures to settle controversies or contests over electors and electoral votes, and if these procedures have been applied, and the results have been determined six days before the electors� meetings, then these results are considered to be conclusive, and will apply in the counting of the electoral votes. This date, known as the �Safe Harbor� deadline, fell on December 8th, 2020.
In layman's terms: If the results of a state's election have been determined by Dec. 8th, these results are considered to be conclusive and will be applied when counting the electoral votes on January 6th. Each of the following states are considered �contested,� either under state law or federal law, and therefore �safe� from this deadline: in Georgia, Plaintiffs have filed a lawsuit following the certification per law, but no other action has yet been taken to my knowledge; and in Wisconsin, a trial hearing is scheduled for Thursday, December 10th.
Texas filing actually saved Michigan from the Safe Harbor Clause just like Pennsylvania. Prior to the Texas filing, Pennsylvania may actually have not made the cut off unless SCOTUS accepted the case, which is why people had speculated that Alito moved the deadline to respond from the 9th to the 8th at 12N EST, allowing SCOTUS to accept the case before the end of the day. This would�ve saved Pennsylvania from the Safe Harbor Clause; however, we now know that PA would�ve been out but for TX.
Texas�s case is significant in that the state itself has sued the other states, in their official capacities, in the Supreme Court under the original jurisdiction clause of the U.S. Constitution. Article III, Section II of the Constitution establishes the jurisdiction (legal ability to hear a case) of the Supreme Court. The Court has original jurisdiction (a case is tried before the Court) over certain cases, e.g., suits between two or more states. Inherently, the state of Texas had nowhere else to file for relief against the shenanigans in the other states. Texas asserted its right to due process under the law and SCOTUS is required to take up the action under this clause. There is no dodging this case, remanding it, etc.
Further, Texas�s case is significant because it alleges the same or similar irregularities from the named states, creating a separate federal action that will incorporate the claims from these other states into one large consolidation of all irregularities that have affected the outcome of the election in each of these states. Think of the US Constitution as a contract and TX is accusing these four states of breaching their duties to follow their own election laws. Intentionally or unintentionally, these four states can now effectively ride the coattails of Texas into D.C., filing amicus briefs and providing mounds of evidence that have otherwise been ignored by the lower courts of these respective states. Hypothetically, there is also the potential that SCOTUS decides to take up all these matters together in one large consolidated case and determine the merits and remedy in each of them.
The most optimistic view of this case would be that SCOTUS determines that these states have in fact in broken their laws and/or constitutions and therefore their state�s respective results cannot be accepted. If these four states� electors are not accepted, Biden drops from 306 electoral votes down to 244, below the necessary 270 electoral votes to win. Trump would remain at 232, which means that the 12th Amendment would be invoked as neither candidate has a majority of the Electoral College needed to win. If there is no majority, the 12th Amendment of the United States Constitution requires:
�the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.�
Effectively, the U.S. House of Representatives would now decide the election, favoring Trump. Each State would get one vote after a quorum of 33 states is established. The winner would need to obtain at minimum 17 state votes. Assuming that the one state vote would be cast by the a member of the party that holds the majority in each congressional delegation, the current makeup of the House is 28 Republican states, 19 Democratic states, and 3 tied states. Trump would have a 28-19 advantage that could not be overcome by the 3 tie votes. Even if the Democrats tried to block this final vote by refusing to participate, it is likely that the Republican members of each states� Congressional delegation would stand in the place of those Democrats who failed to appear and represent their constituents.
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