How are states (Texas + many others) allowed to be suing other states?

Question

It has come to my attention that there were many US states, being led by Texas, that are suing multiple key battleground states such as Michigan and Georgia for the way that they conduct their elections. I don't know the full details but it does seem like a way to make Trump get 270 electoral votes because if you flip those states into Trump's column they add up to 290 votes for Trump.

How is this legal for a state to do this? And has this ever happened before, especially on this scale? This is not a partisan question. How is a US state allowed to sue others in order to try to change the outcome of an election?

I changed it to "disproven" for neutrality reasons. And mail in vote fraud is virt. nonexistent in the US as far as researchers know. — Michael Mormon, Dec 10 '20 at 16:06
One thing to note is that it's not precisely accurate to say that other states have joined the Texas effort. Their Republican attorneys general jointly signed a document asking the Supreme Court to consider the case, not necessarily representing any other political support from their state. — jeffronicus, Dec 10 '20 at 16:08
IMNAL, however my reading of the claims by Texas does not address fraud at all, rather that the four states conducted their elections in a manner that Texas didn't like. — BobE, Dec 10 '20 at 18:40
Technically speaking, Texas is not (yet) suing Pennsylvania et. al. What it's done is filed a "Motion for Leave to File a Bill of Complaint", ie. asking the Supreme Court for permission to sue. — Mark, Dec 11 '20 at 01:39
See Does Texas have standing to litigate against other States' election results? on law.SE. — jcaron, Dec 11 '20 at 13:52
SCOTUS answered your question: Motion to file denied, 7-2 (Alito and Thomas dissenting) — Sjoerd, Dec 12 '20 at 00:07
@Sjoerd: Note that Alito and Thomas would simply have heard the suit, without any indication as to how they would have ruled. — jamesqf, Dec 12 '20 at 03:00
On the contrary, they indicated they would not grant relief. — Obie 2.0, Dec 12 '20 at 18:27
@Obie2.0 it's unclear if they meant that they would not grant any relief under any circumstances, or if they would just not grant the temporary injunctive relief. — Ryan_L, Dec 12 '20 at 22:25
Why wouldn't they be able to sue? How else are disputes about the legality of executive action to be tested. You cant just take government at their word. The whole of Western democracy with its separation of powers, parliamentary sovereignty and an independent judiciary is built on the principal that you cant trust government. If the states were acting lawfully, then they will be able to show it, if not then it should be called out. — Brenton Thomas, Dec 13 '20 at 02:33

score 51 · Accepted Answer · edited Dec 13 '20 at 16:38

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The suit isn't really about fraud. They are arguing that the four defendant states violated their own constitutions and the US Constitution with how they changed their election laws. The suit argues that all four changed their election laws via executive edict or court ruling, not via the state legislature like the US Constitution requires.

The suit argues that they have standing to sue because these unconstitutional changes may decide who the Vice President will be, and since the VP settles ties in the Senate and the Senate represents the States, then Texas has been injured.

States do have the right to sue each other, how else would they settle their differences? Usually the stakes aren't this high, but it does happen.

edited Dec 13 '20 at 16:38

zedmelon

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answered Dec 10 '20 at 17:08

Ryan_L

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"...all four changed their election laws via executive edict or court ruling, not via the state legislature..." - So Texas is arguing that the state legislature was not aware of this court ruling/edict that changed the election laws? Or it was, and did nothing? – BruceWayne Dec 11 '20 at 04:08
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@BruceWayne I don't know all the specifics. I know a suit in PA alleging that the state constitution would require election law changes to be implemented via ballot measure, which did not happen. That suit was dismissed before the election for not having standing since no injury had happened yet. They brought it again, and it was dismissed again because there was no possible remedy. Can't sue before it happens, can't sue after it happens. Doesn't seem super fair to me. – Ryan_L Dec 11 '20 at 06:04
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@BruceWayne Oh, almost forgot. If SCOTUS rules in favor of Texas, nothing is stopping the plaintiff state's legislatures from sending Biden electors anyways. All ruling in Texas's favor would do would be to disallow any unconstitutional ballots. It wouldn't demand PA's legislature to send Trump's electors. – Ryan_L Dec 11 '20 at 06:30
@Ryan_L the plaintiff is the party filling the complaint, in this case Texas. – phoog Dec 11 '20 at 07:29
Note that those 4 states merely changing their laws is not enough for the injury. The claim also has as its final bullet point in its lead: "The appearance of voting irregularities in the Defendant States that would be consistent with the unconstitutional relaxation of ballot-integrity protections in those States’ election laws." Hence all the statistical attempts in the suit to prove that absent those laws-changes/irregularities, Trump+Pence would have won. https://skeptics.stackexchange.com/questions/49969/is-there-less-than-a-one-in-a-quadrillion-chance-of-biden-winning-states-where-t – the gods from engineering Dec 11 '20 at 12:36
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The problem with these lawsuits is there was plenty of time to file them before the election and it appears they are only being filed because Texas (and others) don't like the results. In reality if they are violating the constitution of the state this should have been resolved before the election and in fact some lawsuits about this did get thrown out before the election. – Joe W Dec 11 '20 at 13:20
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@Ryan_L do you have any details of the no injury rejection before the election? I'm unable to find anything for pre-election law suits rejected for no-injury, possibly due to the sheer number of post-election ones rejected for a wide variety of reasons. – Jontia Dec 11 '20 at 15:23
The argument with VP is ridiculous. They may equally oppose the election of senators from the other state. – user Dec 11 '20 at 15:34
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"States do have the right to sue each other, how else would they settle their differences?" Gave me a good laugh. Only in th US could this make sense. – Dec 11 '20 at 18:51
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@Jontia Assuming Ryan_L is talking about Kelly v. Boockvar, the claim that the suit was dismissed before the election is incorrect. The Kelly plaintiffs never brought a suit before the election; instead, they assert that they were prevented from suing before the election under precedent from Kauffman v. Osser. Whether Kauffman actually applies in this case, or whether standing could be found under a different standard (since Pennsylvania is more lenient in finding standing than federal courts) is a different question. – awksp Dec 11 '20 at 20:00
Texas doesn't get to complain that some other state isn't following their own laws, though. If someone in that state feels that way, they take it up through the state's court system. Can Wisconsin sue Texas over having chili as their official state food, and ask SCOTUS to change it to beer and cheese soup? Of course not, because Wisconsin doesn't have the right to tell Texas how to run Texas. The right to sue is when there's something about the other state that harms the suing state, and "I disagree" isn't harm. – PoloHoleSet Dec 14 '20 at 18:55
Part of me suspects that there's also some attempt to tie-in the complaints about the Voting Rights Act, and the change in rules about who states have to notify about changing their laws. – Sean Duggan Mar 28 '22 at 14:35

score 30 · Answer 2 · answered Dec 10 '20 at 16:41

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Obviously they are allowed to sue. Nobody can stop anyone from suing anyone else. The problem is what happens when they are in court. For the Pennsylvania lawsuit, the judge's reasoning to throw the case out was widely published in a 33 page document, that appeared even in the "newspapers" like the Daily Mail.

The hurdles to overcome to have their case actually heard and not straight rejected are these: First, they must have standing. Which means, THESE STATES must have been damaged in some way. It's hard to argue how Texas is damaged by something that Pennsylvania does which doesn't affect Texans. In Pennsylvania, they failed on that.

Second, they must ask for relief that the court can grant. The Pennsylvania court said: Even if you suffered damage, and even if you can prove it, I can't just throw out the votes of a few million voters. No way. Ask for something else that I can give you. So they failed there, no court is going to throw out votes of millions of people who were told that they were legitimately voting.

Third, in order for their case to be heard, they must give plausible reasons why the court should believe there might be wrongdoing. They don't have to give proof, that's what they need to do when the court case is heard, but they must give plausible reasons. Accusations, or saying that wrongdoing is possible, that's not enough. For example, if you state that you saw your neighbour walking out of your garden with a basket full of cherries that is probably plausible grounds to believe he stole them, enough for your theft case to be heard, but not evidence. In Pennsylvania and everywhere else, the Republicans failed in that area. They never gave more than accusations, never any plausible grounds why the judge should expect wrongdoing.

All together: These states have every right to sue, but will most likely not be able to get their case heard.

answered Dec 10 '20 at 16:41

gnasher729

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In a nutshell: That is true. They have every right to sue. But what is the evidence for these accusations? -- I agree, is that correct @gnasher729? – Michael Mormon Dec 10 '20 at 16:48
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Or a better example might be the Pennsylvania legislator who tried to sue in the Supreme Court, and got a one-line rejection: https://www.buzzfeednews.com/article/zoetillman/supreme-court-denies-pennsylvania-challenge I also wonder if the Supreme Court enforces penalties for filing frivolous lawsuits? – jamesqf Dec 11 '20 at 03:56
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@jamesqf SCOTUS has its own bar, so it can simply deny anyone that ticks it off from being able to argue cases before it as they want. – zibadawa timmy Dec 11 '20 at 04:09
@MichaelMormon, you don't need evidence to file a court case. You need plausible reasons or the court will reject your case without hearing it. "Plausible reasons" are more than just accusations, but less than actual evidence. If the court agrees to hear the case, then to WIN the case you would need evidence. And not just evidence that I did something, but evidence that I did something that I wasn't legally allowed to do. – gnasher729 Dec 11 '20 at 12:39
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One slight correction here. They should most likely not be able to get their case heard - but an important fact is the makeup of the Supreme Court, where 3 of the 9 judges were appointed by Donald Trump. Trump has strongly implied that he now expects a quid pro quo from those judges, especially from Amy Coney Barratt, his most recent appointee. It remains to be seen whether the Supreme Court judges will base their decision on upholding the US Constitution and laws, or on loyalty to the person who appointed them. – Graham Dec 11 '20 at 12:47
... The point of these lawsuits isn't that there is a good legal or factual basis for them. It's quite simply an attempt to find a suitably biased court. – Graham Dec 11 '20 at 12:49
I think the real question being asked is "How do they have standing in the cases they allege?" – Barmar Dec 11 '20 at 14:59
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Turns out someone did ask that question in Law.se: https://law.stackexchange.com/questions/59111/does-texas-have-standing-to-litigate-against-other-states-election-results – Barmar Dec 11 '20 at 15:11
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@Graham, unfortunately for Trump, the justices he's been appointing have been originalists, not Trump loyalists, and the originalist reading of the Constitution is quite clear on this point: states have near-total control over their elections. – Mark Dec 11 '20 at 21:07
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@Mark: Originalists in theory. In practice, originalists on the Supreme Court have been known to ignore both original understanding and original intent when it conflicts with their desired ends; it's a way of claiming an objective neutrality that just happens to largely align with specific political beliefs, and when the political beliefs conflict, originalism frequently gets thrown out the window. – ShadowRanger Dec 12 '20 at 03:33
@Mark I don't know which way they'll jump, whether it's towards loyalty to the man who appointed them or in the direction of their own general opinions. But the reason Trump loyalists in the various states are trying for this is that Trump does believe he's bought them. That this should even be a possibility is deeply worrying. – Graham Dec 12 '20 at 08:04
Obviously it is not the case that "nobody can stop anyone from suing anyone else". If a court does not have jurisdiction you cannot sue there. There are certainly cases where no court at all has jurisdiction, so you cannot sue at all (most likely international cases though, but inter-state affairs are not too far away from that). – Peter - Reinstate Monica Dec 13 '20 at 10:10
@Peter-ReinstateMonica That would be a matter of definition. Surely I can type up my paperwork and take it to the court house (not literally), and in the end my case won't be heard. It's up to you to define how far I need to get to call it "I sued". Maybe if you don't get your case past a court clerk and the judge never sees it. – gnasher729 Dec 13 '20 at 21:28
@zibadawatimmy you have to be admitted to the SC bar to practice law before the supreme court. You do not have to be a member of the bar to file a petition with the supreme court. You can do that either by hiring as your attorney someone who is a member of the bar or by reading the the courts rules and filing your petition yourself. – phoog Dec 13 '20 at 22:51
@jamesqf someone who repeatedly abuses the court's process can be given additional hurdles to clear in order to file future petitions. The court does not penalize someone the first time they file a questionable petition because that would tend to discourage people from seeking access to the court. – phoog Dec 13 '20 at 22:54

the gods from engineering · Answer 3 · 2020-12-12T02:27:11.473

Well, with 20/20 hindsight, Texas didn't have standing, according to SCOTUS' decision:

The State of Texas's motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.

Of some note, Alito and Thomas dissented on the[ir] principle that all original jurisdiction cases need to be heard [in their view]:

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.

(From some stats I've seen, some 50% of original jurisdiction claims are rejected in this first phase though; by 2018: "In the three decades since 1961, only 102 motions asking leave to commence original jurisdiction actions have been filed by or against a state [...] Of those motions in state-party cases, the Supreme Court has denied 50, nearly half".)

To add this seemingly important bit to Ryan's answer, those 4 states merely changing their laws is apparently not enough for an actual injury. The claim also has as its final bullet point in its lead:

The appearance of voting irregularities in the Defendant States that would be consistent with the unconstitutional relaxation of ballot-integrity protections in those States’ election laws.

Which is almost certainly why the suit contains all those statistical attempts to prove that absent those laws-changes/"irregularities", Trump+Pence would have won.

So, yeah, the suit argues that (1) state election law/regulations changes (essentially that made mail-in ballots easier in 2020) were unconstitutional and (2) Trump+Pence would have won in the absence of those changes, i.e. had laws been enforced the same as in 2016.

A bunch of AGs (and governors) from other states have now filed briefs in opposition to that. To quote from Montana's counterarguments:

Texas’s claims under the Electors Clause hinge on its theory that voting procedures in Pennsylvania, Wisconsin, Michigan, and Georgia conflict with the enactments of those states’ respective legislatures. But state election laws vary considerably. Hence, even accepting Texas’s premise that a state-law objection to a voting procedure could yield a federal constitutional violation, the Electors Clause analysis necessarily differs from state to state. Likewise, the susceptibility of state voting procedures to fraud, as well as states’ historical experiences with fraud, may differ from state to state. It is impossible for such allegations to be properly adjudicated in a single Original Action involving four States, with no factual record or legal conclusions by any lower court, on a highly expedited time frame.

When litigants did bring state-by-state challenges before the election, those challenges proved unsuccessful. Montana’s experience is a prime example. [...]

Of course, the Supreme Court has to decide on these conflicting viewpoints.

N.B. There's already a fairly lengthy Wikipedia page on the case. I won't try summarize the various commentaries here, but interestingly perhaps, Alan Dershowitz (who had defended Trump during impeachment) opined that the Texas suit was "creative but unlikely to win".

"Of some note" - Alito and Thomas have a long-standing stance where they feel SCOTUS can't block states from *filing* original jurisdiction cases. They think it's mandatory or accept cases. This SCOTUS ruling said "you can't even file, because you can't offer a reason to be heard." Alito specifically said he would have allowed them to file, and THEN would have voted to reject their case. So their partial dissent wasn't really about this case, specifically. — PoloHoleSet, Dec 14 '20 at 18:50

How are states (Texas + many others) allowed to be suing other states?

3 Answers3