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Thu Dec 10, 2020, 04:31 PM

Doesn't Texas need to show ACTUAL harm incurred, instead of conjectural?

"Votes for a Democrat are bad for our Texas citizens" is not evidence of actual harm.

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Arrow 13 replies Author Time Post
Reply Doesn't Texas need to show ACTUAL harm incurred, instead of conjectural? (Original post)
Goodheart Dec 10 OP
Chin music Dec 10 #1
Gothmog Dec 10 #2
Blue_true Dec 10 #10
Gothmog Dec 10 #11
Blue_true Dec 10 #13
MagickMuffin Dec 10 #3
Gothmog Dec 10 #5
Gothmog Dec 10 #4
Goodheart Dec 10 #7
jmg257 Dec 10 #6
Goodheart Dec 10 #8
Retrograde Dec 10 #9
Blue_true Dec 10 #12

Response to Goodheart (Original post)


Response to Goodheart (Original post)

Thu Dec 10, 2020, 07:29 PM

2. Standing, Today and in the TX Case

From Prof. Hasen's election law blog. https://electionlawblog.org/?p=119508

The Supreme Court today in Carney v. Adams turned back a suit for lack of standing. The Court quoted from an earlier opinion by Justice Powell, in words that might be thought to have some bearing on the case Texas wants the Court to hear:

In other words, a plaintiff cannot establish standing by asserting an abstract “general interest common to all members of the public,” id., at 440, “no matter how sincere” or “deeply committed” a plaintiff is to vindicating that general interest on behalf of the public, Hollingsworth, supra, at 706–707. Justice Powell explained the reasons for this limitation. He found it “inescapable” that to find standing based upon that kind of interest “would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government.” United States v. Richardson, 418 U. S. 166, 188 (1974) (concurring opinion). He added that “[w]e should be ever mindful of the contradictions that would arise if a democracy were to permit general oversight of the elected branches of government by a non-representative, and in large measure insulated, judicial branch.” Ibid.; see also Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 222 (1974); Warth v. Seldin, 422 U. S. 490, 500 (1975)
.
This is the DU member formerly known as Gothmog.

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Response to Gothmog (Reply #2)

Thu Dec 10, 2020, 07:46 PM

10. Excellent find. But you are an Attorney.

The ruling by the current Court says that they are just waiting to get Paxton’s suit into their hands before blowing it up.

If Texas and the 17 other foolish states (including my Florida, unfortunately) prevail, we can kiss democracy and any national stability goodbye. If Texas prevails, any political outcome could be reversed in Court, one state could essentially regulate the affairs within another state (which is what Texas is trying to do).

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Response to Blue_true (Reply #10)

Thu Dec 10, 2020, 07:48 PM

11. I have been volunteering on voter protection issues since 2004

I read most of the briefs and the legal blogs on key cases for grins. I am a corporate attorney but Congressman John Lewis introduced me to Congressman John Lewis as a civil rights attorney. My kids still laugh at this
This is the DU member formerly known as Gothmog.

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Response to Gothmog (Reply #11)

Thu Dec 10, 2020, 08:06 PM

13. I am an engineer. Engineering writing makes me sleepy sometimes, but

legal writing makes me comatose.

Good that you can read legal briefs for kicks, I honestly can’t do that for scientific writing unless I have a particular need to read it.

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Response to Goodheart (Original post)

Thu Dec 10, 2020, 07:29 PM

3. The only harm as a Texan is the embarrassment our state government is


They are severely harming me.

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Response to MagickMuffin (Reply #3)

Thu Dec 10, 2020, 07:32 PM

5. I agree

I believe that the SCOTUS will reject the Texas brief on standing issues
This is the DU member formerly known as Gothmog.

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Response to Goodheart (Original post)

Thu Dec 10, 2020, 07:31 PM

4. This is from Prof. Adler's blog discussing Penn. brief

Prof. Adler has a good discussion of the Penn brief on this issue https://reason.com/volokh/2020/12/10/pennsylvania-georgia-michigan-and-wisconsin-defend-their-authority-to-select-presidential-electors/

On the question of the Court's jurisdiction, the Pennsylvania filing makes a powerful argument that Texas lacks Article III standing to bring its claims.

First, Texas cannot establish it suffered an injury in fact. An injury in fact requires a plaintiff to show the "invasion of a legally protected interest"; that the injury is both "concrete and particularized"; and that the injury is "actual or imminent, not conjectural or hypothetical." Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016). According to Texas, the alleged violations of Pennsylvania's Election Code undermined the authority granted to the Pennsylvania General Assembly under the Electors Clause. Motion at 3, 10-11, 13-15. But as the text of the Electors Clause itself makes clear, the injury caused by the alleged usurpation of the General Assembly's constitutional authority belongs to that institution. AIRC, 576 U.S. at 800 (legislature claimed that it was stripped of its responsibility for redistricting vested in it by the Elections Clause). The State of Texas is not the Pennsylvania General Assembly. See Virginia House of Delegates v. Bethune-Hill, __ U.S. __, 139 S.Ct. 1945, 1953 (2019) (noting the "mismatch between the body seeking to litigate [the Virginia House of Delegates] and the body to which the relevant constitutional provision allegedly assigned exclusive redistricting authority [the General Assembly]".

Second, Texas's claimed injury is not fairly traceable to a violation of the Electors Clause. As discussed above, each of Texas's allegations of violations of Pennsylvania law has been rejected by state and federal courts.

Third, Texas fares no better in relying on parens patriae for standing. It is settled law that "a State has standing to sue only when its sovereign or quasi-sovereign interests are implicated and it is not merely litigating as a volunteer the personal claims of its citizens." Pennsylvania, 426 U.S. at 665. The state, thus, must "articulate an interest apart from the interests of particular private parties." Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Baez, 458 U.S. 592, 607 (1982). In other words, "the State must be more than a nominal party." Ibid. That, however, is exactly what Texas is here. Texas seeks to "assert parens patriae standing for [its] citizens who are Presidential Electors." Motion at 15. Even if, as Texas claims, the presidential electors its citizens have selected suffered a purported injury akin to the personal injury allegedly sustained by the 20-legislator bloc in Coleman v. Miller, 307 U.S. 433, 438 (1939), which they did not, that does not somehow metastasize into a claim by the state rather than those presidential electors. The 20-person bloc of legislatures in Coleman sued in their own right without the involvement of the State of Kansas. Ibid. Texas has no sovereign or quasi-sovereign interest at stake. It is a nominal party, at best.
This is the DU member formerly known as Gothmog.

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Response to Gothmog (Reply #4)

Thu Dec 10, 2020, 07:37 PM

7. Interesting. Thank you.

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Response to Goodheart (Original post)

Thu Dec 10, 2020, 07:34 PM

6. Yes - that point is part of GA response...

A. Texas argues that it has suffered a direct injury
because “the States have a distinct interest in who is
elected Vice President and thus who can cast the tiebreaking vote in the Senate.” Mot. for TRO 14–15
(emphasis in original); see also id. at 15 (arguing that
a “Plaintiff State suffers an Article III injury when
another State violates federal law to affect the outcome
of a presidential election”). Under governing precedent,
that is not an injury in fact. A State—like any
plaintiff—has standing only if it alleges an injury that
is actual or imminent, concrete, and particularized. See
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016)
(citing Lujan, 504 U.S. at 560); see also id. (injury in
fact is the “[f]irst and foremost” of the standing
elements) (quoting Steel Co. v. Citizens for Better Env’t,
523 U.S. 83, 103 (1998)). But Texas has no cognizable
interest specific to Texas in how the Vice President votes. Texas’s interest is in its own representation in
the Senate; Georgia has not impaired that interest.
Texas still has two Senators, and those Senators may
represent Texas’s interests however they choose. Even
by its own logic, Texas has suffered no injury.
In any event, Texas’s speculation that the Vice
President may one day cast a tie-breaking vote is not a
cognizable injury.
This is the DU member formerly known as jmg257.

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Response to jmg257 (Reply #6)

Thu Dec 10, 2020, 07:38 PM

8. Nice :)

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Response to jmg257 (Reply #6)

Thu Dec 10, 2020, 07:45 PM

9. Other states can make that argument

'Texas argues that it has suffered a direct injury
because “the States have a distinct interest in who is
elected Vice President and thus who can cast the tiebreaking vote in the Senate.” '

I'm sure my state has a vested interest in seeing a Democratic vice president for the same reason. And we're bigger. So there!

I'm getting an undercurrent of "we don't want a Black VP" here.

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Response to jmg257 (Reply #6)

Thu Dec 10, 2020, 08:00 PM

12. Surprises happen every day.

The republican AG of Georgia came out of his corner swinging at Texas. It seems that he realizes how dangerous Texas’ suit is, basically, if Texas wins, California can sue Georgia any time California doesn’t like an outcome out of Georgia, like who is elected to the US Senate.

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