MOORESTOWN, New Jersey – This is the type of headline we know has been brewing since Election Day. Now that the day is here, let's unpack the events of this remarkably interesting legal and political week and what it might actually mean for the next four years.
On Monday, Texas Attorney General Ken Paxton announced he would file a lawsuit in the Supreme Court of the United States against four key states in an attempt to block presidential electors from finalizing Joe Biden's election victory. Paxton wants the Supreme Court to allow him to file a motion challenging the results in Michigan, Georgia, Pennsylvania and Wisconsin, and have the Court order their state legislatures (instead of the voters) to decide their state's electors in the Electoral College. The notion behind this is that the legislatures would pack the Electoral College with electors sympathetic to President Trump’s legal arguments and world-view on the validity of the election results.
Then, on Wednesday, 17 GOP-led states filed an amicus curiae brief in support of Texas.
Solomon
As is the case with many legal terms, amicus curiae is a Latin term. It means "friend of the court." Basically, a friend of the court here means a “non-party” to the case who has a strong interest in the outcome of a pending lawsuit. That’s why GOP-led states filed an amicus brief to support the prospective Texas lawsuit (Texas Attorney General Paxton is a Republican, as is the Texas Governor, Greg Abbott).
These states behind the brief are supporting the Texas claims and may seek to draw the court's attention to arguments or information that the parties may not have presented, such as the effects of a particular court ruling on the interests of certain third parties (here, perhaps, the citizens of these amicus states).
An amicus curiae usually presents arguments or information to the court in the form of a brief, as they have done here.
It is important to note that amici curiae (the plural of these states filing together) are not parties to the lawsuit, unless they formally intervene, which they could very well do here but is probably unlikely.
Missouri filed the amicus curiae brief in support of the Texas lawsuit and was joined by Alabama, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah and West Virginia.
In referring to these states as “GOP-led,” they all have Republican Attorneys General. Not each of the 17 states have Republican governors, though 14 do. The states that were part of the amicus brief yet do not have a Republican governor are: Kansas, Louisiana and Montana.
What they also obviously have in common is a desire to support a prospective Texas lawsuit that many see as pure political theater, as many of the issues raised in the brief have already been litigated and rejected. Yet it wasn’t only these states that joined the lawsuit. President Trump, acting “in his personal capacity” as a candidate for the presidency, seeks to intervene in order “to protect his unique and substantial personal interests as a candidate for re-election,” according to the amicus brief.
The timing of this brief is not by chance. The Electoral College is scheduled to meet next Monday, December 14th. Electors from each of the states form the Electoral College. On Monday, these electors - who make up the entire 538 electoral college votes - will meet at various Legislative buildings across the nation to cast their votes for the President and Vice President of the United States.
Many political and legal pundits are calling this a political and legal “hail-Mary” pass, a play with a remarkably slim chance of success. Well, the Hail Mary pass sometimes wins the game in dramatic fashion, as it has already this NFL season. And sometimes not so much.
There are several legal aspects to this filing that make it not just a Hail Mary but one thrown from your own one-yard line.
The Supreme Court is being asked to exercise original jurisdiction, which means that the case wouldn’t be coming to them from a state appellate court. While the Supreme Court can do this, they don’t like to and it takes five justices to vote in favor rather than 4 to accept the case.
While this is a real legal stretch, it remains to be seen how this Texas lawsuit will unfold - or what fantastical legal and political machinations may follow later this week - our first rule about the 2020 election is to bet on absolutely nothing.
Solomon is the Senior Digital Strategist for NextLevel.com and an Adjunct Professor at the Desautels Faculty of Management at McGill University.
