On Wednesday, writing for NBC News, University of Texas law professor Steve Vladeck tore into state Attorney General Ken Paxton's effort with 16 other GOP state AGs to force the Supreme Court to overturn the results of the presidential election, blasting it as "offensively cynical" and a legal "stunt."
Furthermore, wrote Vladeck, the lawsuit has no chance.
"Texas is relying on an obscure source of the Supreme Court’s power — its ability to hear disputes between states immediately without having them go through lower courts, known as 'original jurisdiction,'" wrote Vladeck. "But the claim at the heart of the suit has nothing to do with interstate relations — like a border dispute or litigation over water rights. Nor does it have anything to do with fraud. Rather, Texas is arguing that coronavirus-related changes to election rules in each state violate the federal Constitution, never mind that most states (including Texas) made such changes this cycle."
This strategy, wrote Vladeck, "is lacking in actual evidence; it is deeply cynical; it evinces stunning disrespect for both the role of the courts in our constitutional system and of the states in our elections; and it is doomed to fail." In practice, wrote Vladeck, the justices almost always "refuse to hear many such disputes, usually because the issues undergirding them can be resolved in other cases in the lower courts involving private parties."
"At a more fundamental level, the notion that it is appropriate for one state to sue another because of dissatisfaction with the results of the election in that state is not just offensive; it is belied by at least one prior case in which the court refused exactly that relief," wrote Vladeck. "And allowing Texas to bring a suit like this would inevitably open the floodgates — to California suing Texas over its environmental regulations; to New York suing Florida over its Covid-19 response; and so on."
"When (not if) the Supreme Court slams the door on this Texas case, the president’s critics will (once again) claim victory, the president and his defenders will (once again) move the goal posts (to Congress, one suspects) and the collateral damage will be to the institutional reputation of the courts — and the idea that the courts are anything other than another lever to be pulled in partisan political squabbles," concluded Vladeck.
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