by Sharon Rondeau
Michigan and Georgia for alleged illegal election procedures
(Dec. 11, 2020) — At 10:08 p.m. ET, Hartford, CT’s Fox 61 erroneously reported that the U.S. Supreme Court’s declination to hear the Bill of Complaint in Texas v. Pennsylvania, et al contained “no dissents.”
Texas’s Bill, filed with the court late Monday night, objected to the manner in which Pennsylvania and three other states operated their elections and therefore claimed disenfranchisement of Texas’s and all legal voters in the November 3, election.
Easily visible in the court’s brief order denying Texas’s “motion for leave to file a bill of complaint” is the statement:
Statement of Justice Alito, with whom Justice Thomas joins: 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.
As with many other “news” outlets, Fox 61 characterized the purpose of the lawsuit as an attempt to “overturn the election” and concluded that President Trump now has no possibility of success in that effort.
On January 6, Congress must approve the electoral votes expected to be cast in the Electoral College on December 14 in the 50 respective state capitals. On Wednesday evening, Trump 2020 campaign senior aide Jason Miller reported that several states intend to send “multiple slates of electors” to the Electoral College.
Should members of Congress have objections to the electoral votes cast, they must file them in writing prior to January 6, when a joint session mandated by law is scheduled to take place. As then-Vice President Richard Cheney failed to do in 2009 when Barack Hussein Obama ascended to the White House, the vice president is obligated by federal law (p. 9) to ask if any members have objections.
The Texas lawsuit had sought to “enjoin the use of unlawful election results without review and ratification by the Defendant States’ legislatures and remand to the Defendant States’ respective legislatures to appoint Presidential Electors in a manner consistent with the Electors Clause and pursuant to 3 U.S.C. § 2.”
After hearing co-anchor Jenn Bernstein‘s obvious misstatement, The Post & Email contacted Fox 61 by phone, leaving a voice message to point out the error.
Sharon, you’re mistaken about this but it’s an easy to make error.
Where it says, “See Arizona v. California, 589 U. S. ___ (Feb. 24, 2020) (Thomas, J., dissenting)”, that’s not talking about Texas v. Pennsylvania et al., it’s referencing the Arizona v. California case.
Broken down in the parts:
Statement of Justice Alito, with whom Justice Thomas joins: 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.
You’ll find that exact dissent at https://www.courthousenews.com/wp-content/uploads/2020/02/sc-2-24-order-list.pdf.
What Justices Alito and Thomas are agreeing about here was not the denial of the cert petition in full, but whether the Supreme Court MUST take a case of “original jurisdiction”. Basically, that’s a case that didn’t start in a lower court. It’s rare for SCOTUS to take a case like that so there are opinions on both sides on whether they must. They are referencing that other case. But it’s just an “aside”.
Appears there was agreement on the other issue that led to the denial of cert in total, the “judicially cognizable interest in the manner in which another State conducts its elections”. That meant the Court didn’t believe they should get involved in a case where one state is telling another state what to do (or not). That’s a core tenet of Federalism and state’s rights, it’s a conservative position.
For example, GOP election lawyer (retired) Ben Ginsberg said tonight about Republican states filing these briefs: “Concerned because I think it shows how the Republican Party has a bit lost its way in all of this process. I mean, state’s rights used to be one of the major things that Republicans relied on as a core tenet. In fact, when President Trump decided there couldn’t be a national testing program or masks or getting PPEs for people, it was because the states had the right to do things on their own in the way they best saw. And here all of a sudden you’ve got Republican Attorney Generals and members of Congress signing on to a brief that takes away the fundamental right of the time place and manner that states have to set their own elections.”
Bottom line: It’s tricky and easily confusing but if you look at it in the quotes, it’s about two separate cases. Hope that helps.
There are plenty of sources reporting that the statement by Alito and Thomas was a “dissent” or “disagreement” and/or that Alito and Thomas believed the case should be heard. https://www.breitbart.com/politics/2020/12/11/supreme-court-dismisses-texas-2020-election-challenge-alito-and-thomas-disagree/
https://www.cnbc.com/2020/12/11/supreme-court-rejects-texas-lawsuit-challenging-bidens-election-wins-in-4-key-states.html
https://joemiller.us/2020/12/scotus-denies-texas-case-incredibly-claims-no-standing-in-an-original-jurisdiction-case-only-justice-thomas-stands-strong/
https://www.courthousenews.com/supreme-court-denies-texas-bid-to-overturn-election/
Here, The Post & Email carefully reported that Alito and Thomas did not indicate that the case should be heard: https://www.thepostemail.com/2020/12/11/supreme-court-declines-to-docket-texas-case/
As a “mainstream” outlet, however, Fox 61 should have provided more detail and context since there were those two differences of opinion, albeit on a technicality, instead of simply stating, “There were no dissents.”
Response from legal scholar Joseph DeMaio:
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Thank you for your thoughts on this. This site is great for showing all sides and learning about issues you can’t find anywhere else. Keep up the good work. From this morning’s Wall Street Journal by the Editorial Board:
Trump’s Challenge Is Over
After losing at the Supreme Court, he has no legal alternatives and ought to concede.
By The Editorial Board Dec. 13, 2020 5:27 pm ET
The Electoral College meets Monday to cast its votes for President, officially marking Joe Biden as the election winner. President Trump’s legal challenges have run their course, and he and the rest of the Republican Party can help the country and themselves by acknowledging the result and moving on.
Mr. Trump’s last legal gasp came Friday evening when the Supreme Court declined to hear the Texas lawsuit seeking to overturn the election results in Georgia, Wisconsin, Michigan and Pennsylvania. As we predicted, the Court cited Texas’s lack of legal standing to challenge how another state manages its elections.
Some on the right claim that Justices Samuel Alito and Clarence Thomas dissented, but this is wrong. The Justices said they would have taken the Texas case as a “bill of complaint” when states sue other states.
This is a technical point that concerns the Court’s case management, and the two Justices have a long-time view that the Court should hear more of these direct state appeals. We happen to agree, but in this case the Texas claim was outside constitutional bounds. Justice Alito (joined by Justice Thomas) added that he would “not grant other relief.” This was not a dissent on the merits of the Texas claim.
Mr. Trump and his camp are attacking the Court, and the President is deriding the “standing” point as a dodge. It is much more than that. Limits on standing are fundamental to a conservative understanding of the proper judicial role under Article III of the Constitution. If anyone can sue without a cognisable injury and the possibility of remedy, the courts would be overwhelmed with frivolous claims. The Court made the right call. The spectacle of so many House Republicans endorsing the Texas suit is depressing, and they aren’t profiles in courage.
https://www.wsj.com/articles/trumps-challenge-is-over-11607898467?mod=opinion_lead_pos1