Why Texas’s election suit failed to reach first base in the Supreme Court

The Constitution gives the U.S. Supreme Court a special type of jurisdiction over cases “in which a State shall be Party.” So why didn’t Texas’s post-election case against four other states get past first base last Friday evening?

Texas wanted the Supreme Court to consider its suit against four key presidential battleground states which, it charged, had “usurped” the authority of their state legislatures by making voting changes in response to the pandemic.

But first, let’s take a step back, far back. When the Founders were drafting Article III of the Constitution, which establishes the judicial branch and its powers, they sought to treat states with the dignity they deserved as sovereigns in their own right. They carved out an avenue for suits involving states. They said in Article III, Section 2, that “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original jurisdiction.” The Judiciary Act of 1789 went further by stating that the Supreme Court had exclusive jurisdiction over suits between two or more states, between a state and a foreign government, and in suits against ambassadors and other public ministers,

In all other cases, the justices have appellate jurisdiction. The differences between the two are significant. In original jurisdiction cases, states do not have to go through the lower courts as other parties must before getting to the Supreme Court.  The justices are both trial and appellate courts. They, of course, don’t have the time or resources to hold trials, so they appoint “special masters” to hear testimony, take evidence and make recommendations to the Supreme Court, which makes the final decision.

There also is a difference in the forms filed seeking the court’s intervention. Under the court’s appellate jurisdiction, a party files a petition for certiorari (review) in which it argues why the justices should hear the appeal. In original cases, the party files a motion for leave to file a bill of complaint.

There are not many original jurisdiction cases in each term, and especially rare are cases involving ambassadors and other public ministers. The most frequent cases involve disputes between two or more states. Those disputes are often over boundaries or alleged breaches of compacts over the sharing of water from rivers.

The Federal Judicial Center, the research arm of the federal courts, says that between 1789 and 1959, the Court issued written opinions in only 123 original cases. Since 1960, the Court has received fewer than 140 motions for leave to file original cases, nearly half of which were denied a hearing.

One of the reasons there are so few original cases is that the Supreme Court has said that its original jurisdiction should be exercised “sparingly” because it is a “delicate and grave” matter to control the conduct of one state at the suit of another.

The justices have an original case in the current term: Texas v. New Mexico, a dispute over an interstate water compact involving the Pecos River. It was argued on October 5. The motion to file a bill of complaint was filed in the court in 1974. Yes, these cases can last many years before a final decision.

Now what about Texas v. Pennsylvania, Georgia, Wisconsin and Michigan? Texas sought to overturn the presidential voting results in those four states. It urged the justices to prevent their presidential electors from meeting and to require state legislators to appoint a new slate of electors. Texas ran into two huge problems in seeking the Supreme Court’s review: standing and the Electors Clause.

Standing is the key to the courthouse door under the court’s appellate or original jurisdiction. The Constitution mandates that federal courts exercise judicial power only over cases and controversies. Texas had to show it had suffered a concrete and particularized injury to a legally protected interest “that is fairly traceable to the challenged action (causation)” and that injury can be remedied by a favorable ruling.

Texas argued that the four states it was suing had used the Covid-19 pandemic as an excuse to “usurp” their legislatures’ authority and unconstitutionally revised their state election laws through executive action or friendly lawsuits. Texas claimed that the four states’ actions threatened Texas’s voting rights. Texas, it said, had standing to protect its citizens.

But here was where Texas also ran into the Constitution’s Electors Clause. As Pennsylvania chief deputy attorney general told the justices, the text of the Electors Clause itself “makes clear, the injury caused by the alleged usurpation of the (Pennsylvania) General Assembly’s constitutional authority belongs to that institution.”

The Electors Clause is found in Article II, Section 1, clauses 2 and 3: “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.”

The justices also consider with the issue of standing a related question of whether the state suit involves a justiciable controversy, that is a controversy that can or needs to be addressed by the court. As Georgia argued in its response to the Texas complaint, Texas wanted to alter how the four states appoint their electors. But there is a “textually demonstrable constitutional commitment” to each state’s political branches for how the state appoints electors—once again the Electors Clause.

Georgia added: “This Court has never allowed one state to co-opt the legislative authority of another state, and there are no limiting or manageable principles to cabin that kind of overreach.” Thus, there was no justiciable controversy, much like the Supreme Court found with excessive partisan gerrymandering.

The Supreme Court, in an unsigned order, denied Texas’s motion for leave to file a bill of complaint. The court’s order said the motion was denied “for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.”

Justice Samuel Alito Jr., joined by Justice Clarence Thomas, included in the order a statement that said: “In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction. I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue.”

Justices Alito and Thomas believe the text of Article III, Section 2 establishes the court’s original jurisdiction in mandatory terms. They emphasize the word “shall” in that section and see no justification for their colleagues’ reading that word to mean “may.” They are presently the only justices who read the section as requiring the court to take original jurisdiction of all cases between two or more states.

It’s important to remember that those two justices said they would allow Texas to file its bill of complaint, they also said they would not give Texas the remedy it was seeking—to invalidate the four states’ electors chosen by the votes of their citizens.

Despite the highly charged and unusual context of President Donald Trump’s allies attempting to challenge the results of the election, the Texas case was a classic lesson on the intersection of the court’s original jurisdiction and our Constitution’s division of power.

Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.