For a court known for using a lot of words in its opinions, the Supreme Court’s decision in Texas v Pennsylvania was brief:
The State of Texas’s motion for leave to file a bill of complaint is 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. All other pending motions are dismissed as moot.
Lawyers understood what the Supreme Court decided, but what about everyone else? The explanation invites the conclusion that President Donald Trump lost on a technicality called “standing.” Standing is based upon Article III of the U.S. Constitution, which limits federal courts to hearing only cases and controversies in which a person has suffered actual harm. If those bringing the suit can’t prove that they have been harmed, federal courts lack authority to rule on the case.
Texas argued that “the Defendant States have not only tainted the integrity of their own citizens vote but have also debased the votes in Plaintiff State and other States that remained loyal to the Constitution.” A remarkable number of Republican elected leaders endorsed this argument, including Reps. Pete Stauber, Jim Hagedorn and Tom Emmer of Minnesota. Emmer argued that our nation cannot tolerate “a kaleidoscope of different rules.”
Different states, different rights
“Debasement” sounds serious, but our nation has a tradition of profoundly different approaches to who can vote and how they can do so. Wyoming, Colorado, Utah, Washington and California granted women the right to vote long before the Constitution required it. Does anyone think Texas had the right to stop those women from voting? Those women were surely debasing the men’s-only voting club in Texas.
Several years ago, PETA brought a suit to challenge the conditions in which the Washington, D.C., Zoo kept its elephants and brought an identical suit in Canada. The U.S. courts summarily dismissed the Washington suit, holding that PETA lacked standing to sue. PETA was not an elephant, so it suffered no harm. Two Canadian justices applied similar logic on the PETA Canadian suit. But Chief Justice Catherine Fraser wrote: “Lucy’s case raises serious issues not only about how society treats sentient animals … but also about the right of the people in a democracy to ensure that the government itself is not above the law.”
Did the Supreme Court decision deprive the people of the forum to ensure that the government (in this case the four states Texas sued) was not above the law? The simple answer is no.
Our nation’s kaleidoscope of different rules for voting starts with registration. Minnesota allows same-day registration, but many states do not. Some, such as Oregon, have eliminated polling places and do all the voting by mail. Some make it easy to get an absentee ballot and others make it more difficult. Some have early voting and others significantly restrict that practice.
When Al Gore lost the presidential election as a result of the 5-4 decision of the Supreme Court he said, “I accept the finality of the outcome, which will be ratified next Monday in the Electoral College,” he said. “And tonight, for the sake of our unity as a people and the strength of our democracy, I offer my concession.”
President Trump in response to his 9-0 loss in the Supreme Court called the decision “a disgraceful miscarriage of justice.” He unleashed a barrage of tweets, among them: “I WON THE ELECTION IN A LANDSLIDE, but remember, I only think in terms of legal votes, not all of the fake voters and fraud that miraculously floated in from everywhere! What a disgrace!”
Trump vows to fight on, and he has allies. Texas Republican Chairman Allen West wrote: “The Supreme Court in tossing the Texas lawsuit that was joined by 17 states and 106 U.S. Congressman, has decreed that a state cannot take unconstitutional actions and violate its own election law. Perhaps law-abiding states should bond together and form a Union of states that will abide by the Constitution.”
When Richard Nixon was on the precipice of impeachment and tearing our country apart a group of Republican leaders went to the White House and told him in unmistakable terms something he did not want to hear: Your presidency is over and you must accept that. The times have changed.
Inflamed divisions, undermined democracy
By joining Texas, state attorneys general and members of Congress inflamed the divisions our nation is experiencing.
No one likes to lose an election, particularly if it is close. But the drumbeat of false allegations about what actually happened in this election has undermined the legitimacy not just of the presidency of Joe Biden but of our democracy. This calculated drumbeat has resulted in Republicans overwhelmingly viewing the election as fatally flawed. A Quinnipiac University poll found that only 23 percent of registered Republican voters and slightly less than half of all white men who are registered to vote said that Biden’s victory was legitimate.
Not every elected Republican bought into the Texas lawsuit or the amicus briefs filed by Republican leaders. Wyoming Republican Gov. Mark Gordon put it succinctly,” The relief that Texas seeks would undermine a foundational premise of our federalist system: the idea that states are sovereigns, free to govern themselves. The courts have no more business ordering the People’s representatives how to choose their electors than they do ordering the People how to choose their dinners.”
We are in a far different place from in 1974 when Republican leaders finally concluded that Richard Nixon committed impeachable offenses Accepting that Nixon committed impeachable offense was not easy for those Republicans. They exhibited courage. It surely is harder to determine what the facts were to find an impeachable offense than to throw millions of votes in the trash can and falsely claim that Trump got more votes than Biden. Disenfranchising roughly 10 million people in the four defendant states is, to put it mildly, a very undemocratic act.
All of this seems destined to further divide us. There are recriminations flying all over. There are calls to disbar Trump’s lawyers. There are accusations of sedition against the congressional leaders who signed on to the amicus brief for Texas — and even calls not to seat them in the next Congress.
Trump lost more than 50 cases contesting some aspect of the election. At least 86 judges — ranging from state courts, federal courts to the United States Supreme Court — rejected at least one post-election lawsuit filed by Trump or his supporters. Rarely were the cases dismissed because of standing. They were dismissed because there is no credible evidence the election was unfair or rigged. None of this is healthy for our democracy. And regrettably there seems to be no end in sight.
Kevin S. Burke recently retired as a trial judge on the Hennepin County District Court. He is a past president of the American Judges Association.
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