What is the U.S Supreme Court Decision?

4 Swing States to reject Texas' lawsuit

Georgia, Michigan, Pennsylvania and Wisconsin on Thursday urged the U.S. Supreme Court to reject a lawsuit filed by Texas and backed by President Donald Trump seeking to undo President-elect Joe Biden's election victory, saying the case has no factual or legal grounds and offers "bogus" claims, according to Reuters.

"What Texas is doing in this proceeding is to ask this court to reconsider a mass of baseless claims about problems with the election that have already been considered, and rejected, by this court and other courts," Josh Shapiro, Pennsylvania's Democratic attorney general, wrote in a filing to the nine justices.

Arizona was the latest state to file an amicus brief on Wednesday bringing the total to 18 states. Eighteen states — now including Arizona — have joined a Texas lawsuit filed by Texas Attorney General Ken Paxton against the states of Wisconsin, Michigan, Pennsylvania and Georgia. That lawsuit was filed directly with the United States Supreme Court.

Trump filed a 39-page motion to “intervene” in the case, brought by Texas Attorney General Ken Paxton earlier this week against Georgia, Pennsylvania, Michigan and Wisconsin, “in his personal capacity as candidate for re-election.”

The Supreme Court, which now has a 6-3 conservative majority with the addition of Justice Amy Coney Barrett on the bench, has so far declined to take up election-related disputes and has discretion over whether to hear Texas' case, though Paxton is seeking expedited consideration.

What is the U.S Supreme Court Decision?

The United States Supreme Court’s rules require litigants to file a motion seeking permission to press an original case. That means Texas will need five justices 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 justices -- Clarence Thomas and Samuel Alito -- have previously said they don’t think the court can legally reject an original case. But other conservatives, including Trump-appointed Justices Neil Gorsuch and Brett Kavanaugh, declined to adopt that position when Thomas reiterated it in February.

Legal experts see very little chance the justices will hear a case that’s so obviously weak from a constitutional standpoint, according to Bloomberg.

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

And even when they decided cases on issues like 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.

Jessica Levinson of Loyola Law School said to Bloomberg that: “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 generalized grievances.”

Supporters of US President Donald Trump demonstrate outside the US Supreme Court, December 8, 2020. © REUTERS/Erin Scott

According to U.S News, a number of legal observers poured cold water on Paxton's last-ditch attempt to overturn the election before the high court, calling it a "press release masquerading as a lawsuit."

Richard Hasen, a law professor at the University of California, Irvine, argued in a blog post Tuesday that Texas doesn't have standing "to raise these claims as it has no say over how other states choose electors" and waited too long for a resolution – regardless of the claims' validity.

"It waited too late to sue; the remedy Texas suggests of disenfranchising tens of millions of voters after the fact is unconstitutional; there's no reason to believe the voting conducted in any of the states was done unconstitutionally; it's too late for the Supreme Court to grant a remedy even if the claims were meritorious (they are not)," Hasen wrote.

But Trump's legal team indicated that the president won't back down any time soon on its legal battles.

"It is not unprecedented for election contests to last well beyond December 8," Trump attorneys Rudy Giuliani and Jenna Ellis said in a statement. "Despite the media trying desperately to proclaim that the fight is over, we will continue to champion election integrity until legal vote is counted fairly and accurately."

Q & A Supreme Court lawsuit from Texas

Is there any precedent?

No.

"In a nutshell the President is asking the Supreme Court to exercise its rarest form of jurisdiction to effectively overturn the entire presidential election," said Steve Vladeck, a CNN Supreme Court analyst and University of Texas Law School professor said to CNN.

The Supreme Court has 6 conservatives. Does that guarantee Trump will win?

CNN: No. The court has thus far shown no desire to intervene in the presidential election.

On Tuesday, it rejected the plea from Pennsylvania Republicans to invalidate the state's presidential tallies. It issued one sentence and noted zero dissents. (Justices don't always have to make their votes public.)

Trump has suggested publicly that he hopes his nominees -- Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch -- will side with him on any election dispute. Conservative Justices Clarence Thomas and Samuel Alito are also ones to watch. No justice is required to recuse him or herself from the dispute; Barrett, notably, did not recuse herself in the Pennsylvania lawsuit.

They do "meet" Friday for their regular conference, now held over the phone.

Unlike a traditional cert petition (request for the court to hear a case), it will take five justices to agree to allow Paxton to file his suit.

If the court refuses to take up the lawsuit, it's another nail in the coffin for Trump's hopes to reverse his election loss.

Texas is asking the Supreme Court to declare that the four states administered their elections “in violation of the Electors Clause” and declare any Electoral College votes based on those results null and void unless the state legislatures review them and vote in a manner “that is consistent with the Constitution.”

Trump had the early lead in all four states, only for Biden to overtake him after large numbers of mail-in ballots flooded in over the next several days. Mainstream media have declared Biden the president-elect, but the Electoral College has yet to meet and confirm that. Trump has repeatedly alleged there was fraud in the vote, which both mainstream and social media have dismissed out of hand and labeled “false” or “disputed.”

The Supreme Court on Tuesday rejected an attempt by Pennsylvania Republicans to overturn that state’s results.

Biden defeated Trump by a margin of 306 to 232 electoral college votes and received 7 million more votes than Trump nationwide.

Trump and his allies can still pursue legal challenges, but they could lose steam since "safe harbor" day functions as a way for courts to wind down election disputes. Once the Electoral College votes, the newly installed Congress will finalize the tally on Jan. 6 and Biden will be sworn into office on Jan. 20.

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