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Rachel del Guidice: I’m joined today on “The Daily Signal Podcast” by Hans von Spakovsky. He’s the manager of The Heritage Foundation’s Election Law Reform Initiative and senior legal fellow at the Meese Center for Legal and Judicial Studies. Hans, it’s always great to have you with us on “The Daily Signal Podcast.”
Hans von Spakovsky: Well, thanks for having me back, Rachel.
Del Guidice: So, the latest in the ongoing election saga, which you actually wrote about for The Daily Signal on Tuesday, is that the state of Texas has filed an unprecedented motion with the Supreme Court asking … to file a complaint with the court against the states of Pennsylvania, Georgia, Michigan, and Wisconsin over the 2020 presidential election.
So, Hans, before we go further, can you take us up to speed on what’s going on here?
Von Spakovsky: Sure. Under the Constitution, the U.S. Supreme Court has what’s called original jurisdiction over disputes between states. What that means is that if one state wants to sue another state, they don’t have to go to a lower federal court. They can go directly to the U.S. Supreme Court.
But under federal law and under the rules of the Supreme Court, if a state wants to sue another state, they can’t just file a lawsuit with the U.S. Supreme Court. They first have to ask permission and the Supreme Court has to approve it before the lawsuit can proceed.
And that’s exactly what Texas did on Monday. They filed a motion asking for permission to sue those four states. They attached their complaint that they would like to get filed to that motion.
Seventeen states have now filed an amicus brief on the side of Texas saying the court should take the case. Six states filed a motion to intervene and actually become parties on the side of Texas. And the Supreme Court told the four states that Texas wants to sue that they have until 3 o’clock on Thursday to file a brief explaining why they should not be sued.
Del Guidice: Well, Hans, what are some of the main points that the complaint alleges as it does address irregularities, as you talked about, in Pennsylvania, Georgia, Michigan, and Wisconsin? Can you talk about some of the main things that are discussed in this complaint?
Von Spakovsky: Yeah, the complaint, actually, it’s very well written and it goes into great detail on the changes that were made or the rules governing the election process in each of those four states. And what the complaint in essence is saying is that those changes in the rules were not done by and approved by the state legislatures in each state.
Instead, those changes were made either by state officials inside the executive branch or the state governments, like the secretaries of state in Georgia and Pennsylvania, or by judges.
And the problem with that, Texas says, is that under the U.S. Constitution, the Electors Clause, the U.S. Constitution gives state legislatures the authority to set the rules for presidential elections, not state governments. So what that means is that the state legislatures in all four of those states, they could have made those changes, but they didn’t.
And those government officials who made those changes—and probably the best example is Pennsylvania. Remember the state law there says absentee ballots have to be received by the end of Election Day.
Instead, the secretary of state, with the approval of the state Supreme Court, said, “Well, we’re just going to override that state law and we’re going to accept absentee ballots received up to three days after Election Day.”
What Texas says is all of those changes in the rules and all of the ballots that were cast according to those changes in the rules were all invalid votes. And that therefore the Electoral College votes of those four states should not be allowed to be counted.
They also make another claim, which is a violation of equal protection. Remember equal protection is the part of the 14th Amendment that says one person, one vote.
Under the Bush v. Gore decision 20 years ago in Florida, what the Supreme Court said is that means that every vote inside a state has to be valued the same. And you can’t have different standards in different parts of the state for what counts as the vote.
And again, Texas goes through in great details and describes certain changes that were made by election officials that, in fact, treated absentee ballots cast in some parts of the state differently from absentee ballots cast in other states.
As a result of all of that, Texas, the voters of Texas, and the voters of other states who actually complied with the U.S. Constitution, they were damaged. They were cheated because the changes those four states made, Texas says, altered the outcome of the presidential election.
Del Guidice: I actually was going to ask you more about one person, one vote. If we can unpack that a little bit more. That was one of my next questions.
Von Spakovsky: Sure.
Del Guidice: Was that violated? … Do you think [the Supreme Court will] address it if they do decide to hear the case?
Von Spakovsky: Yeah. Again, if you go to Pennsylvania, one of the very specific examples that Texas gives is this: In Pennsylvania, state law says that if an absentee ballot is received from a voter and it is defective, it’s not in compliance with state law, it’s supposed to be rejected.
So in other words, for example, if a voter forgets to sign the absentee ballot, which is a requirement under state law, election officials have no option other than to simply reject the ballot and not count it.
Instead, Texas says, and … we all know this is true, election officials in two urban areas in Pennsylvania, Pittsburgh and Philadelphia, they set up a cure process.
In other words, when an absentee ballot came in that was not compliant with state law, rather than rejecting it, they would call and contact the voters and say, “You need to come in and fix your ballot. If you forgot to sign it, you need to come in and sign the ballot. Otherwise, it’s going to be rejected.”
Voters in the rest of Pennsylvania were not given that option to cure their ballots because election officials there actually followed state law. And what Texas is saying is that set up, basically, a two-tiered system with voters in those two big cities being given more of an opportunity to vote than other voters. And that violates the one person, one vote standard.
Del Guidice: Hans, as you mentioned earlier, there are now at least 17 states that have joined this lawsuit. Do you think that puts pressure on the Supreme Court to hear this case?
Von Spakovsky: It does put pressure on them. The way this works is, like I said, Thursday [at] 3 o’clock was the deadline for the four states to respond. Usually on Fridays, the justices at the Supreme Court have an internal meeting where they discuss and vote on potential new cases to take.
So I suspect that what’s going to happen, is on Friday, there will be a formal vote inside the Supreme Court on whether or not to give Texas approval to continue with this lawsuit.
I don’t know what’s going to happen, but one thing I will say about this is that while I think there is actually substantive merit to the claims being made by Texas and now all these other states, from a legal standpoint, it’s kind of a Hail Mary pass to try to convince the Supreme Court to take up a case that could potentially change the outcome of a presidential election.
The political consequences of that would be very serious, and there may be justices on the court who, despite the valid legal issues, aren’t willing to do that.
Del Guidice: So if this case does go forward and the Supreme Court does decide to here it, Hans, when do you think the soonest would be that the case is heard?
Von Spakovsky: Oh, I suspect that if they actually decided on Friday to take the case, they would probably schedule oral arguments as soon as possible.
They probably wouldn’t do it this weekend, but I would suspect they might schedule oral arguments by Monday, just a couple of days further along to hear oral arguments, because obviously, they’re well aware of the dates of the meeting of the Electoral College and how a decision has to be made extremely quickly about this.
Del Guidice: Well, … another hypothetical question—
Von Spakovsky: Sure.
Del Guidice: If the case is taken up by the court, would you say that this would potentially be unprecedented in American history? And if so, why or why not?
Von Spakovsky: Yeah, it is unprecedented. We’ve never had a situation before, at least that I’m aware of, in which the Supreme Court was asked to invalidate the votes of four different states.
And the remedy that Texas is asking for is, one, to declare that the way those four states administered their elections violated the U.S. Constitution, and therefore, their electoral votes should not be counted. And instead, they should be ordered to hold a new special election.
As an alternative, Texas requests if the elections … already [had] been certified, Texas asked that the court order the legislatures of each state to appoint a new set of electors in compliance with the U.S. Constitution.
Del Guidice: The New York Times reported on Wednesday that President [Donald] Trump has asked Texas Sen. Ted Cruz to argue this case. Hans, what do you think of this? And how likely is it that this will happen? And if the senator does argue this case, how do you expect this to go?
Von Spakovsky: Well, Ted Cruz, … before he was a U.S. senator, he was the solicitor general of Texas. In other words, he was the state official designated with arguing cases before the U.S. Supreme Court.
He’s a very experienced litigator. He has argued numerous cases before the U.S. Supreme Court. In fact, he was a law clerk at the U.S. Supreme Court early in his career for William Rehnquist. So if he were to argue the case, Texas would have a very good person up there argue the case for them.
But keep in mind, this was not filed by the Trump campaign. This was filed by Texas. So it would be entirely up to Texas to decide who would argue the case for them.
I think that [the] Trump campaign has asked for permission to intervene in the lawsuit if the Supreme Court gives it’s go-ahead. But again, we’re all just going to have to wait to see what Supreme Court does about this.
Del Guidice: We can’t predict what the justices will end up doing, but it definitely seems unlikely, of course, that Justices [Elena] Kagan, [Sonia] Sotomayor, or [David] Souter would be sympathetic to the Texas case.
But do you have any predictions, Hans, on how Justices [Clarence] Thomas, [Neil] Gorsuch, [Brett] Kavanaugh, [Amy Coney] Barrett, or [Samuel] Alito would view this case? And what are your thoughts as well on Chief Justice [John] Roberts who’s often now become a swing vote?
Von Spakovsky: Boy, I really can’t predict how the justices will rule. I think you’re correct that the three liberal justices on the court, I don’t think there’s any question that they will vote to refuse to let the case go forward.
Chief Justice Roberts has become the switch-hitter, the person who switches his vote, ever since Justice [Anthony] Kennedy left the court. I suspect because of the politically controversial nature of this, there’s a good possibility that he would vote with the liberals.
How the five remaining justices will go on that, I don’t know.
I think there are serious constitutional issues that have been raised, and I think they really need to be dealt with certainly for future elections to ensure that state officials within the executive branches of those state governments don’t just think that they can override election rules and laws set by the state legislatures.
I think that would lead to potential chaos in other contentious elections as this election has been contentious. But how they’re going to vote, I just can’t predict.
Del Guidice: Hans, I have another hypothetical for you. If this case does go to court in Texas, what happens to the 2020 election in these four states? Do they have another presidential election? How does this affect the national election itself? And could this potentially delay the next president’s inauguration?
Von Spakovsky: We’ve never had anything like this happen before. As I said, Texas is asking the court to declare that the electoral votes of those four states should not be counted and that those four states be forced to either have new elections or for the state legislatures to appoint new electors.
Again, we’ve never had anything like this happen before that I’m aware of in American history.
All of that would have to be done before Jan. 20. If not, there actually is a federal statute that says that if the outcome of a presidential election has not been determined by Jan. 20, the date of inauguration, the acting president of the United States shall become the U.S. speaker of the House.
So even if this controversy went on, Donald Trump would not remain as the president. Instead, Speaker Nancy Pelosi, assuming she’s reelected as the speaker, would become the acting president of the United States while this is resolved either in the courts or with new elections.
Del Guidice: On the flip side, Hans, if this case goes to court and Texas loses, what are the implications for future elections?
Von Spakovsky: I think the implications, frankly, are dangerous.
The Constitution is very clear that it’s state legislatures who set the rules for how a presidential election will be conducted in their state. And I think it’s dangerous to have a situation in which state court judges and other judges interfere with those state laws and change the rules in the middle of an election.
I think it’s also dangerous if state officials, governors, secretaries of state, and others think that they can simply override state laws and change the rules in the middle of an election.
And the reason for that is that governors, for example, are partisan elected officials. And they might, if they can get away with this, change the rules governing election to favor the candidates of their political party. That’s why you don’t want that kind of thing to happen, besides the fact that it violates the Constitution.
So I think this has been a very dangerous development this year, one that the courts need to deal with and prevent from happening in the future.
Del Guidice: Well, Hans, are there any other possible outcomes besides an outright win, or not win, loss for Texas? And how else in this swing could the Supreme Court decide to rule?
Von Spakovsky: Well, look, I guess it’s possible that the Supreme Court could allow this case to go forward, could make a ruling on the merits of the case and say that these local officials violate the Constitution when they change the rules.
But on the other hand, the court might not be willing to provide the remedy that Texas wants to declare the votes of so many voters to have been invalid. So they might rule on the legal issue without providing the remedy that Texas is seeking.
Del Guidice: Hans, you had alluded to this earlier, but does this lawsuit have any implications for states’ rights? And would you say Texas is trying to control how other states handle their elections?
Von Spakovsky: Well, I have no doubt that’s the argument that would be made by the four states when they reply to this. I have no doubt that they will be arguing that how they run their elections is no business of Texas.
But Texas, I think, actually makes a very strong argument, which is that the process of electing a president and a vice president is a national, in scope, election. And that if one state violates the Constitution and engages in behavior that alters the outcome of a presidential election, that that damages the voters of Texas and other states that have followed the law and have followed the Constitution.
So I actually think that is a sufficient claim to give Texas standing to bring a lawsuit like this.
Del Guidice: Well, we’re going to continue following this. I’m sure we’ll circle back with you next week, Hans. Thank you so much for joining us on “The Daily Signal Podcast.” It’s always great to have you with us.
Von Spakovsky: Sure. Thanks for having me.