by Sharon Rondeau

Texas Attorney General Ken Paxton filed the Bill of Complaint against Pennsylvania, Wisconsin,
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.

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  1. 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.

    1. 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.”

    2. Response from legal scholar Joseph DeMaio:

      —————————

      The comments made by “Luke” merit analysis and response. First, it is obvious that the dissenting views of Justices Alito and Thomas were made in regard to the declination of assumption of jurisdiction over the “original action” in Texas v. Pennsylvania and are to be distinguished from Justice Thomas’ “dissent” in Arizona v. California. Rocket science this is not.

      Second, the Supreme Court’s order in Texas v. Pennsylvania was not a “denial of the cert petition in full…, “ but instead was a refusal to assume jurisdiction over an original “bill of complaint” arising between two states of the union. Such a “bill of complaint” is not a petition for a writ of certiorari. Again, not rocket science, but an easy to make error.

      Third, the claim that the Alito and Thomas dissenting views in the Texas case were not formal “dissents” is essentially fatuous: the reader signal “see” used by Justice Alito preceding the reference to Arizona v. California means that the formal dissent there constitutes direct support – rather than an “aside” – for his view in Texas v. Pennsylvania that the Supreme Court does not have discretion to deny the filing of a bill of complaint in a case that falls within the Court’s original jurisdiction.

      Fourth, the proffered quote from attorney Ben Ginsberg about “states’ rights” is amusing, in that it suggests – erroneously – that Texas was attempting to take away “the fundamental right of the time [,] place and manner that states have to set their own elections.” Not so. Texas was attempting only to secure adherence to the requirements of the Constitution with regard to presidential elections. If the proffered Ginsberg quote is correct, it suggests that his position is that a state may set the time, place and manner for its general presidential election as, say, July 4th at the base of the highest peak in the state and that only racial minorities can vote…. without interference or challenge from the federal government or other states. C’mon, man…

      Hope that helps.

      1. 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