Why experts think Trump’s long-shot Texas suit won’t succeed

Washington/New York — Texas is trying to take the US supreme court where it’s never gone before with a lawsuit that seeks to win a second term for President Donald Trump by overturning the election results in four other states carried by Joe Biden.

A case filed directly in the supreme court this week by Texas attorney-general Ken Paxton contending that state officials in Pennsylvania, Georgia, Michigan and Wisconsin unconstitutionally expanded mail-in voting has been hailed as game-changer by the president, who tweeted on Wednesday that it was “the big one” that “everyone has been waiting for”.

But legal experts see a different reality.

“At core, Texas is recycling legal claims that have already failed, but through a lawsuit that suffers from a whole host of additional procedural problems,” said Lisa Marshall Manheim, constitutional and election law professor at University of Washington School of Law in Seattle.

Here is a look at where the lawsuit stands and how it might play out in the coming days:

What is Texas claiming and what is it seeking?

Texas claims its voters’ constitutional rights are being violated by the election-rule changes in the other four states. The suit asks the court to block those states from casting their collective 62 electoral votes for Biden and order their Republican-controlled legislatures to appoint either new electors or none at all. Either option would require the judges to cast aside votes of states with a combined population of nearly 40-million people.

The Trump campaign and its allies have made similar claims before: that state officials, rather than legislatures, unconstitutionally changed election processes. Judges, including a number appointed by Trump, have rejected those arguments. Several said that, even if some violation were found, the remedy of disenfranchising millions of voters is unthinkable and would be a far greater constitutional violation than those alleged in the election challenges.

Manheim said the Texas case would face the same fate. “The law does not permit minor inconsistencies in an election to result in the invalidation of millions of validly cast votes,” she said. “Texas’ attempt to invalidate the votes of Americans in other states is unprecedented and is particularly hard to square with Texas officials’ purported commitment to state’s rights.”

Why do Trump and his allies claim the Texas case is different?

The main reason is because it was filed directly in the supreme court, and at least some on the Right believe the judges might hear it. Trump has often mused that the high court and its 6-3 conservative majority, including three judges he appointed, could deliver a second term for him, but he has bemoaned the fact that he’s had to work his way up from the lower courts.

The supreme court so far has shown little interest in getting involved. The court on Tuesday rejected a request by some of Trump’s Republican allies to nullify Biden’s victory in Pennsylvania. The one-sentence rebuff carried no public dissents and came less than eight hours after Pennsylvania officials filed a response requested by judge Samuel Anthony Alito. But that case involved only a single state — nowhere near enough to reverse Biden’s election — and Trump and his allies appear to believe a case that tries to flip four states is different. “ALL CRITERIA MET,” Trump tweeted on Wednesday in apparent reference to the case’s suitability for high court consideration.

How is Texas able to file directly with the supreme court?

Federal law gives the supreme court so-called original jurisdiction over a handful of matters, including suits by one state against another. Filing that type of suit means asking the supreme court to function like a trial court — considering evidence and making factual findings, rather than just ruling on legal questions.

Most original jurisdiction suits are over issues such as water rights, and the court generally appoints a special master to consider the case and make recommendations. Those cases have been known to take years. The Texas suit, by contrast, asks the court to act in a matter of days — faster than it’s ever acted in an original jurisdiction case, according to Stephen Vladeck, a University of Texas law professor whose specialities include federal courts and constitutional law.

Does the court have to consider the suit?

No. The court’s rules require litigants to file a motion seeking permission to press an original case. That means Texas will need five judges to agree to let the case go forward, one more than the four required when the court is considering whether to hear an appeal in one of its more typical cases.

Two conservative judges — Clarence Thomas and Alito — have previously said they don’t think the court can legally reject an original case. But other conservatives, including Trump-appointed judges Neil Gorsuch and Brett Kavanaugh, declined to adopt that position when Thomas reiterated it in February.

Legal experts see very little chance the judges will hear a case that’s so obviously weak from a constitutional standpoint. “Before you even lose you have to get to the court,” said Jessica Levinson of Loyola Law School. “And I don’t think they’re going to get to the court. It’s going to be a race to see if the court rejects this one faster than they did the one from Pennsylvania.”

What other hurdles does Texas face?

Even if the judges say Texas can file the suit, they could quickly dismiss it. Legal experts are sceptical that Texas has standing, meaning the state has suffered the type of concrete injury that entitles it to seek relief.

“There is nothing about the injury Texas claims it will suffer that is unique to Texas as compared to any other state,” Vladeck said. “And the supreme court is not going to be in a hurry to open the floodgates to states suing to vindicate generalised grievances.”

The campaign and its allies have had a number of lawsuits dismissed for lack of standing. Timing has also been an issue, with many courts saying Trump and his allies acted in bad faith by challenging election procedures as unfair only after votes were cast and the results were known. It could be concern for the judges that Texas is only suing four battleground states that went for Biden, though other states also made changes to their election rules.

And even when they decided cases on issues such as standing, a number of judges unequivocally stated that claims that some voters’ equal-protection and due-process rights were violated because other jurisdictions had different voting procedures completely lacked merit.

What about Trump intervening in the suit?

Trump moved to intervene in the case on Wednesday afternoon, arguing that “the president’s participation in litigation critical to his election should be welcomed”.

But the president’s quest to involve himself might do him more harm than good. “If Trump intervenes, it actually is lethal to the argument that there needs to be original jurisdiction because this is a dispute between the states,” said Levinson.

It will take the votes of five judges to decide if Trump can participate.

What if the supreme court actually rules for Texas?

Legal experts are adamant there is virtually zero chance of this happening. But if it did, Harvard law professor Laurence Tribe says it still might not hand the election to Trump.

Eliminating the four defendant states from the Electoral College would leave Biden with a 244-232 electoral vote advantage. Many conservatives believe that, because no candidate would have 270 electoral votes, the election would go to the House of Representatives — where Republicans would have an edge because votes for presidents are cast by state delegations rather than individual members.

But Tribe begs to differ. “What the Texas strategy foolishly ignores is that the 12th Amendment tosses the election into the House only if no candidate has a ‘majority of the whole number of Electors appointed’, and that ‘whole number’ would go down to just 475, not 538, if the Texas gambit were to work,” said Tribe.

Bloomberg