Good Morning! Let’s talk a little bit about Idaho’s intervention through the Gov., Lt. Gov, and certain legislators in Texas v. Pennsylvania.

(Note, I am a recovering campaign and elections attorney [the Capital Crimes Section in the Ohio AG’s office also prosecuted campaign law, we joked that we were the Capital/Capitol Crimes Section]) Dirt will always love you more than a big donor who expects favors afterwards.

Anyway, I hope that you have not wasted your time reading the proposed Complaint Texas drafted. Poorly written, poorly thought out. Rehashes all sorts of rejected theories

Fundamentally, it asserts that the Constitution, through the Electors clause as well as the 14th Amendment (a) prohibits states from adopting campaign regulations except by the legislature and (b) disenfranchises the voters and other states if states have differential regs

Now, yes, they are only focused on the Presidential race, because the representative from district 2456 in Texas doesn’t have the pardon power. But, the reality is Constitutional law is a Pandora’s box of unanticipated consequences.

SCOTUS is usually pretty good about thinking these things through, because generally they are smart, and their clerks are smart, but, things do happen.

So, assume Texas’ theory is correct and is adopted by SCOTUS. Well first, Courts don’t like to adversely impact other things, so they will likely try to limit the result, but see Bush v. Gore and how for many the concurrence is now the law for which it is cited.

So is the Elector’s Clause limited to federal elections, maybe but in practice no. Also, how does the theory relate to the remedy sought? Their remedy is to ignore the votes from offending states, in part because voters in one part of PA had a different experience than others

But, you cannot throw out the votes for just the Presidential race, there is no “Ballot Severability” in this instance, where the alleged wrong doing is widespread and systemic

Also, if you get to the application of the Electors Clause through due process and equal protection (ignoring for a moment the nature of the injury) the reality is if you let that out of the box, it will be applicable to other races

Yes, the remedy when specific localized fraud in a single race where the number of affected or relevant ballots is small enough to swing the outcome has resulted in the nullification of that race. But that is where it is clear that Candidate A clearly had a role in the fraud

The allegations here, though are that the fraud/error/misdeed it is systematic and widespread and undetectable (Conspiracies generally are not)

So, if Texas were to prevail (it will not), the result is to recognize a due process or equal protection violation for electoral actions that were not taken in accordance with the Electors Clause, and to invalidate the votes from certain states.

YeAH, RwNJ ReJoiCe, OrAnGe GOd PrEVaiLS. And in your best Lee Corso voice, you look at the list of Idaho Legislators who are supporting this though their Amicus with Janice, and you go,

You know, due to COVID your primary in May was
Conducted totally via mail
Was conducted after a federal judge intervened ordering the SoS to accept ballot requests after the deadline
Neither of which were approved by the legislature

In fact, Texas’ general election had some similar elements that Paxton claims is defective (Should we teach him about Unclean Hands, oh wait, I think he knows that one)

The legislature did make changes in Idaho election law during a special session to address some of these items for the General election. Like PA had done over a year ago, without challenge until now

So, why is this a big deal? Well, the theory will not just be applicable to the Presidential election going forward or looking retrospectively. Arguably, losing candidates in local and statewide races, who lost in the spring primary, could under the same theories challenge

In the future, any hiccup in any election that happens, will be grounds to attack it on these same grounds. Yes, close elections happen and you never will have a perfect election. But Texas isn’t seeking to change a close election. Texas is seeking to defeat a clear result

So, all you Idaho Legislators who signed on, who won primaries in May, with these same allegedly constitutionally defective elements, is your election void? Suspect? Subject to Challenge later? That is really what you are seeking. Good luck with that.