U.S. Supreme Court

Was SCOTUS unanimous in tossing Texas' election suit on standing ground? Alito a cipher

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The U.S. Supreme Court on Friday evening refused to allow Texas to file a lawsuit directly with the court that challenged the election results in four other states.

The court’s order cited lack of standing by Texas, SCOTUSblog reports.

“Texas has not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections,” the order said. “All other pending motions are dismissed as moot.”

Justice Samuel A. Alito Jr. issued a statement accompanying the order that is leading to differing interpretations, according to appellate litigator Howard Bashman of How Appealing. Alito’s statement was joined by Justice Clarence Thomas.

Texas had sought to overturn the election results in the battleground states of Georgia, Michigan, Wisconsin and Pennsylvania by filing a lawsuit directly with the nation’s top court. The suit invoked the Supreme Court’s original jurisdiction to resolve disputes among the states.

Texas had asked the justices to delay the Electoral College vote scheduled for Monday or to prevent the four states from casting their Electoral College votes for Biden, who was declared the winner in all four states.

Alito’s statement read: “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. See Arizona v. California, 589 U.S. ___ (Feb. 24, 2020) (Thomas, J., dissenting). 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.”

Were Alito and Thomas saying they would allow the suit to be filed, but then they would dismiss it on the standing issue? Were they saying they would accept the filing, but they would deny some sort of relief without expressing a view on any other issue? Were they saying they would accept the filing but would deny all relief—including the request to toss the election results—on the merits?

Bashman pointed out that labeling Alito’s writing as a “statement” indicates that he agrees with the court’s results denying all relief to Texas. Bashman would have rewritten the last sentence this way if Alito found no standing: “I would therefore grant the motion to file the bill of complaint but deny all other relief due to lack of standing, thereby expressing no view on the merits of this matter.”

Bashman asked for other views on Twitter. An anonymous appellate lawyer who tweets at @nyttypos wrote: “My reading is ‘we would deny the motion for an injunction were the motion for leave to file granted but express no view on the claims themselves; we aren’t telling you whether we would deny on standing, or the merits or the equities.’ “

Garrett Epps, a professor at the University of Baltimore School of Law, had this view: “Implies a view on relief, to wit: #%*$ no! But I suspect implies openness to the argument about ‘independent state legislature’ doctrine in a proper future case timely brought with standing in another ejection cycle.”

Richard Pildes, a professor at the New York University School of Law, explained the doctrine in an op-ed for CNN. The issue is whether a state constitution or voter initiatives can interfere with the right to regulate national elections given to state legislatures under the U.S. Constitution.

In another story, CNN points out that labeling the Alito writing a statement, rather than a dissent, was important symbolically because the court spoke with one voice to stop the challenge.

“From a legal perspective, the fat lady has sung,” said Steve Vladeck, a professor at the University of Texas School of Law, in an interview with CNN.

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