Will Texas’ Election Lawsuit Provide Chief Justice Roberts the Comeuppance His Lawlessness Deserves?

Dec 11, 2020 by David Fowler

Will Texas’ Election Lawsuit Provide Chief Justice Roberts the Comeuppance His Lawlessness Deserves?
Late Monday, Texas’ Attorney General filed a Motion with the United States Supreme Court asking it to take jurisdiction over a lawsuit the state wants to file against Georgia, Michigan, Pennsylvania, and Wisconsin. Last week I said Chief Justice John Roberts needs to do his job or get off the Bench. Now, his lawlessness and lack of fidelity to the U.S. Constitution has come home to roost on the biggest stage ever—a divisive presidential election. There is no easy answer for him.
The lawsuit raises important constitutional questions that need to be addressed. The excellent amicus (friend-of-the-court) brief filed by Missouri’s attorney general and joined by Tennessee’s attorney general and those of 15 other states, raise two fundamental constitutional issues that were foundational to what the Founder’s thought best preserved civil liberty for all of us. I will lay them out and then explain Roberts’ problem.

Separation of powers in relation to civil liberty

The first of the two doctrines put in play by Texas is the separation of powers. It holds that civil liberty is best protected when the powers of civil government are divided between the three branches of government—the legislative branch that makes laws and public policy, the executive branch that executes or carries out the laws made by the legislative branch, and the judicial branch that interprets any ambiguities in the enacted law and judges whether the acts of the other two branches are within the constitutional boundaries set for them.
When the power of any of the two branches effectively comes to rest in only one, then the security against tyranny and, thus, civil liberty is threatened.

Dual Sovereigns in relation to liberty

The second of the two fundamental doctrines at play is less intuitive. It is the fact our nation was structured in terms of “dual sovereigns.” 
Here is how one of our most respected Supreme Court Justices, Joseph Story, explained this doctrine in the first commentary on the U.S. Constitution. He said “[n]either constitution,” state or federal, “is to be construed alone, but each with a reference to the other.” His reason was as follows:
Each belongs to the same system of government, each is limited in its powers, and within the scope of its powers each is supreme. Each, by the theory of our government, is essential to the existence and due preservation of the power and obligations of the other. The destruction of either would be equally calamitous, since it would involve the ruin of that beautiful fabric of balanced government which has been reared with so much care and wisdom, and in which the people have reposed their confidence as the truest safeguard of their civil, religious, and political liberties.

This is not some dusty Constitutional relic of the past. The Missouri amicus brief notes that this very same principle was affirmed, though less eloquently, by a 9 to 0 decision written in 2011 by Justice Anthony Kennedy (of all people!), Bond v. United States. The Court said:
The federal system rests on what might at first seem a counterintuitive insight, that “freedom is enhanced by the creation of two governments, not one. . . .  “[F]ederalism secures to citizens the liberties that derive from the diffusion of sovereign power.”

What U.S. Constitutional provision was violated and how

The provision of the U.S. Constitution at issue is Article II, Section 1, clause 4. It says, “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.”

It is clear that the U.S. Constitution requires that the state legislative bodies, not the executive or judicial branches and not a state or local coordinator of elections, are to set the law governing the appointment of electors, who all state legislature bodies have determined will be decided by popular elections. 

Texas alleges that either state governmental bodies other than the legislature (e.g. state judges) changed their state legislature’s election laws regarding absentee balloting or that various state actors effectively changed those laws by not following them.

Two more fundamental principles that govern Texas’ lawsuit

As I see it, the point of the lawsuit over the elector provision in the U.S. Constitution rests on two fundamental principles that tie into the two civil liberty principles mentioned above. Here are those two principles and in the next section, I will tie them in. 

The first, though not argued (yet), arises from the seminal Supreme Court case articulating the beloved doctrine of judicial review, Marbury v. Madison. That early decision in our constitutional history held that the Court gets to review laws to determine if they violate the U.S. Constitution. 

But to reach that conclusion, the Court said something else that applies to Texas’ lawsuit:
It cannot be presumed that any clause in the constitution is intended to be without effect. (emphasis added)

Therefore, the clause in the Constitution requiring state legislative bodies to set the law governing electors must mean something. There must be some way to comply with or violate it. Otherwise, it means nothing.

The second fundamental principle is found in Article VI, clause 2 of the U.S. Constitution. It says:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

What does this mean? As recently as 2018 the Supreme Court said the “Supremacy Clause is effectively a state law and state power preemption provision.” Thus, the Supremacy Clause effectively says that the U.S. Constitution’s electors clause applies to the states, and any state government actions contrary to it are unconstitutional, period.

How does all this relate to the Texas lawsuit?

The point of the lawsuit now becomes rather straightforward.

All states are in this presidential election together and when the citizens of some states are confined to what their legislative bodies prescribe by statute and citizens of other states are not similarly confined, then the presidential election, as to the whole of the country, does not take place on a set of equally applicable rules. 

Texas is arguing the principle that was applied in the Bush-Gore election process in Florida. Some counties were doing one thing and other counties were not. Things were not equal among voters in that state. The Texas lawsuit moves that principle to the national level.

So, when some state judges violate their own state’s provisions for the separation of powers to “rewrite” the state’s absentee ballot law and other states only allow their legislative bodies to make those laws, then our presidential elector laws are not being governed by the same set of U.S. Constitutional rules for qualifying electors.

When some states treat the U.S. Constitution as the supreme law that trumps what their state can do and others don’t, this is a violation of the principle of dual sovereigns.

And this is precisely where Roberts’ comeuppance comes in.

Roberts’ constitutional lawlessness receives its comeuppance.

Roberts has become increasingly cast, and rightly so, as one who cares more about the public’s perception of the Court than what the U.S. Constitution requires. A couple of quick examples related to the same two principles at issue in the Texas case should suffice.

Violating the Separation of Powers.
  1. Roberts treated all the references to “penalties” in ObamaCare as a “tax” in order to uphold it.
  2. Roberts rewrote ObamaCare to say that the language “state-operated exchanges” for insurance meant federally operated exchanges.
In other words, Roberts is okay with one branch of government—here the national judiciary—usurping another branch of government’s constitutional authority and duty to enact statutes if it achieves a desired political end.

Violating Dual Sovereignty by violating state sovereignty.

In June of this year, Roberts applied a 2016 abortion decision to hold unconstitutional a Louisiana abortion law even though he said he still thought the 216 decision was wrong.

In other words, the Chief Justice is okay with ignoring what he thinks the constitution says for the sake of consistent results. Of course, that consistency allowed the national judicial branch to continue intruding on and interfering with a state’s rightful authority to regulate the medical profession within its borders.

The Chief Justice’s Dilemma

The issue Texas raised is really important, and Roberts now has five colleagues who generally believe the U.S. Constitution should be upheld and applied as written. However, the last thing he wants is for another presidential election to be decided by a 5 to 4 vote of the Court. Such a decision will fuel the view of liberals that President Trump “put” Justice Barrett on the Court to “save” his presidency.

But if he becomes a sixth vote to make the electors clause, the doctrine of separation of powers, and the doctrine of dual sovereigns actually mean something, liberals will wonder aloud why he decided, in this situation, to become principled rather than political.

To “protect” himself, Justice Barrett, and the Court, in general, from charges of being political, Roberts needs to convince his colleagues not to take the case. But ducking the case may be worse than his other two options.

If the Court does not take the case and does not give us an understanding of what the electors clause means and how it relates to the supremacy clause and the principle of dual sovereigns, then it may well send to every corrupt, politically-motivated state judicial branch, governor, and election coordinator this message: Do as you please and we will say nothing.

That message will forever undo in the minds of the people the security of the ballot box and the value of the U.S. Constitution as the supreme law by which we have all agreed to play in presidential elections.

What will you do, Mr. Chief Justice? I say you need to interpret the law like a judge or get off the bench and become a politician.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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