Commonsense jurisprudence will recognize the open-shut argument that voters' civil rights were violated by vote dilution during an unconstitutional election process.
By Andrew Cuff, The Federalist, December 11, 2020
The Supreme Court case docketed Dec. 8 by Texas Attorney General Ken Paxton that is supported by 17 states seeks redress for unconstitutional election processes in four states, including my own. As an appointee of the Pennsylvania Advisory Committee to the United States Commission on Civil Rights (USCCR), I wholeheartedly endorse the plaintiff’s argument—especially its bearing on equal protection in voting rights, a special focus of USCCR.
The state of Texas, through its attorney general, claims standing to sue on the grounds of harm done to Texans by a presidential election that was unconstitutionally conducted, under a legal doctrine called parens patriae wherein states can represent their citizens. Of course, Texans are not the only ones harmed: Texas v. Pennsylvania, Georgia, Michigan, and Wisconsin maintains that officials and judges in the four states violated the U.S. Constitution’s Electors Clause (Art. II, § 1, cl. 2) in the 2020 election, thus harming all American citizens.
In my own state, I can attest to this fact: Pennsylvania made non-legislative changes to its election laws that facilitated the casting and counting of illegal ballots. This was particularly true for mail-in ballots, an option heavily favored by Democrats, and which Democrats’ unilaterally stripped of numerous ballot integrity measures.
These violations have been presented by Democrats and their media allies as a fait accompli. They manipulated the rules of the election to their advantage, but now claim nothing can be done about it.
Thankfully, America is still a nation of laws—most importantly, the Constitution. Its principles, including the principle of equal protection cited in Texas v. Pennsylvania, et al., cannot simply be discarded, “even in times of crisis,” as Supreme Court Justice Neil Gorsuch recently argued in Diocese of Brooklyn v. New York.
Because election lawsuits do not often invoke the equal protection clause, some might need its constitutional jurisprudence spelled out. The phrase “equal protection” is a linchpin of civil rights that appears in the 14th Amendment: “No state shall…deny to any person within its jurisdiction the equal protection of the laws.”
This applies to elections in that, as the 2000 Supreme Court case Bush v. Gore determined, “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” In other words, wrongfully counting illegal ballots denies many Pennsylvanians our civil rights by diluting our vote.
Pennsylvania election officials have now attempted to deny their actions violated equal protection. Originally, in their reply to an earlier constitutionality challenge, Kelly v. Pennsylvania, they only protested that the court’s intervention would be “disruptive” and that Pennsylvania’s election did not violate its own state constitution.
As Pennsylvanians know, our state constitution is interpreted by our hyper-partisan supreme court, and in their view, Democrat election officials can do no wrong. But now they argue in their opposition statement that equal protection could not have been violated, because Texas and other states can only sue on behalf of their own residents, not on behalf of Pennsylvanians whose votes were diluted.
Commonsense jurisprudence—particularly among the court’s originalists—will recognize the open-shut argument that voters’ civil rights were violated by vote dilution during an unconstitutional election process. It’s unlikely they’ll abandon Pennsylvanians whose civil rights were violated simply on the grounds of this harm’s location. Still, the question remains: what do the plaintiffs expect the court to do about it, post-election?
Unlike the Kelly v. Pennsylvania case, which seeks to have 2.5 million unconstitutionally cast ballots tossed out, plaintiffs in Texas v. Pennsylvania, et al. are not seeking to discard any ballots. Rather, they expect the court to enjoin the states from “taking action to certify presidential electors or to have such electors take any official action—including without limitation participating in the electoral college or voting for a presidential candidate—until further order of this Court.”
After that temporary restraining order or stay, there are several possibilities, including a lack of electoral majority that would be decided in the House of Representatives, or one that President Trump himself has cited, invoking state legislatures’ Article II power of choosing electors.
Such a court order could work in Trump’s favor, although not necessarily. The House of Representatives would vote as a group of state delegations, which would mostly be Republican. And all four states in the Texas suit have Republican-majority legislatures, but not every Republican lawmaker supports the president, even if their constituents do.
House delegations and state legislators may need to ponder the very same civil rights argument the court is about to consider. In a tumultuous election, whoever wins or loses, our nation must not lose its Constitution. Allowing unconstitutionality and fraud to determine the course of America’s future is a civil rights violation that cannot be repaired.