Tyranny On The Docket

The Supreme Court should unanimously choose democracy over tyranny, possibly as soon as today. I use “should” in both of its senses: it is the right thing to do and they will do it. The only question is whether they dismiss Texas’s outrageous lawsuit with or without an explanation. Greg Sargent of The Washington Post argues that we need to consider what’s at stake: 

President Txxxx has once again demanded that the Supreme Court invalidate millions of votes in four states, nullifying the election and keeping him in power illegitimately.

Indeed, Txxxx was unintentionally explicit on this point: He predicted that Joe Biden’s presidency will be corrupt, and commanded the court to overturn the election results on that basis, in the process making this command with no legitimate legal or constitutional basis at all.

As early as Friday, the Supreme Court is expected to weigh in on this demand, which has taken the form of a lawsuit waged by the state of Texas, and backed by Txxxx and his propagandists, against four swing states that Biden won. The court will likely refuse to hear the case.

All of which is why the scorching reply brief that Pennsylvania has now filed is an extraordinarily important document. It frames the stakes with appropriate urgency, by essentially arguing that the Texas lawsuit and its supporters are, in effect, asking the court to arbitrarily and lawlessly impose the will of Txxxx supporters on that of the majority that rejected Txxxx — i.e., tyranny.

Even if the court does reject the lawsuit, it’s important for Americans to understand what Txxxx and his co-conspirators are attempting. Now that more than 100 House Republicans, more than 15 Republican state attorneys general and the two GOP senators running in the Georgia runoffs have endorsed this lawsuit, we should be clear on what large swaths of the GOP are really supporting.

The Texas lawsuit asks the court to invalidate the outcomes in Pennsylvania, Michigan, Wisconsin and Georgia on the grounds that the voting in them was administered illegally, a claim that largely revolves around the dramatic expansion of vote-by-mail in them. That could clear the way for GOP-controlled state legislatures in all four to appoint pro-Txxxx electors.

The Pennsylvania brief attacks the core of Texas’s case . . . . Pennsylvania points out that numerous courts have already shot down the same irregularities alleged by Texas, including the falsehoods that verification standards weren’t followed and that poll-watchers weren’t allowed to witness counting. . . .

It’s in debunking the merit of Texas’s other claim — of harm done to it — that the bigger point is made.

As the Pennsylvania brief notes, intrastate disputes that the Supreme Court has heard generally involve alleged damage done by one state to another state’s “core sovereign interests.” This might involve, say, a dispute over a boundary or a body of water.

In this case, though, Texas is instead claiming that its voters have been harmed by the supposedly illegitimate pro-Biden outcome in the four other states.

Which Texas voters were harmed by this? Why, those who voted for Txxxx, of course, or at least didn’t vote for Biden. . . .

[The Pennsylvania] brief notes, what Texas is really demanding is this:

Far from trying to vindicate its own sovereign or quasi-sovereign interests, Texas is ultimately seeking redress for the political preferences of those of its citizens who voted for President Txxxx.

It adds:

Let us be clear. Texas invites this Court to overthrow the votes of the American people and choose the next President of the United States. That Faustian invitation must be firmly rejected.

. . . Stephen Vladeck, a law professor at the University of Texas at Austin, emails me this:

Texas is basically asking the Supreme Court to overturn the election for no other reason than because it has suspicions no one has been able to prove about mischief in other states. It’s not just a borderline frivolous legal suit; it’s an invitation to the Justices to simply substitute the preferences of a minority of voters for those of the clear majority.

We spend a great deal of time debating whether Republican elected officials endorsing this effort genuinely support its goals or instead are trying to realize other instrumental purposes, such as energizing the base or keeping Txxxx happy so he will endorse GOP candidates.

But even if those are also operative motivations, . . . would these elected Republicans be fine with this effort actually succeeding? There is just no evident reason to give them the benefit of the doubt . . .