I will be brief here, as the issue I am discussing may be resolved by the U.S. Supreme Court tomorrow afternoon. Texas has brought an action in the in the Supreme Court against the States of Georgia, Michigan and Wisconsin, seeking an order requiring the legislatures of those states to take action to ensure that electors are appointed only in accordance with state and federal law. The action alleges that those states “violated the Electors Clause by modifying their legislatures’ election laws through non-legislative action.”
Of immediate interest, Texas has filed a motion for a temporary order enjoining those states from certifying the election of Presidential Electors and enjoining their electors from casting electoral votes until the issues raised in the present action are resolved. The Court has ordered the defendant states to reply by 3 P.M. on December 10, as I write, tomorrow.
In a recent appeal of a Pennsylvania election case to the Supreme Court, Justice Alitio, who is also the Circuit Judge for the Third Circuit which includes Pennsylvania, referred a motion for temporary relief pending appeal to the full court. The full court set a short reply deadline and then denied the request for temporary relief in about 20 minutes after the deadline. I expect they will act on this motion tomorrow afternoon.
The Supreme Court does have original jurisdiction under the Constitution to hear actions among states. I expect though, that they will deny the motion for temporary relief. A major rationale for the decision in Bush v. Gore in 2000 was the inviolability of Federal deadlines for the casting and counting of electoral votes. The timeline of those deadlines is set out in After the Ball is Over 3: A Plague of Lawyers
Moreover, the interest of the State of Texas in the manner of selection of electors in other states is not at all clear. The Texas Attorney General’s argument relies on case law suggesting that illegal voting by some citizens injures and devalues legitimate voters and their votes, depriving them of equal protection. The whole structure of the Electoral College is anything but equal value to all voters. Texas, under the Constitution, is entitled to a certain percentage of the entire electoral vote, determined by the most recent U.S. Census. They retain that, regardless of how the electors of other states are selected.