[U] A Fine Amicus Brief Sets Out Applicable Election Law — For This Morning’s Likely Final Houston Hearing, In Federal Court…

Updated @ 3 PM CST — The GOP was just bounced out of federal court. Time’s up. Count those 127,000 votes from in and around Houston. End, update.

Just to keep the bidding straight, this is why the Texas GOP will not get the TRO they seek, this morning — in the federal district courthouse in Houston. It is a last ditch, fools’ errand effort by the GOP / vote suppression forces.

The highly-esteemed law professors are right — the Texas vote suppressors are wrong:

. . .The issues present in this case have already been decided in state court. Plaintiffs now seek to re-litigate the state law issues in federal court on the basis of a novel and unfounded federal constitutional theory which would wrest control of Texas election law from the state authorities charged by law with implementing and interpreting it. The plaintiffs’ novel theory is simply incorrect. The Elections Clause does not grant federal courts the power to override a State’s construction of its own law or to create a private constitutional right of action in favor of individuals solely because they disagree with the State’s construction of its election laws. . . .

The Bush v. Gore concurrence [Ed. Note: not binding law, at all] was limited to the situation in which state courts interpret state law in a way that (a) is so wrong that it has “no basis” in state law and “no reasonable person” would interpret it that way, and (b) contravenes the express decision of the state official “authorized by law to issue binding interpretations of the Election Code.” Bush v. Gore, 531 U.S. at 119-20 (conc. of Rehnquist, J.). Even on its own terms, the non-binding concurrence does not confer authority on federal courts to interpret state law as a general matter, but only in extraordinary cases where a state court’s or state official’s interpretation is so wrong and so unexpected that it violates due process. . . .

The correct procedure to challenge the Secretary of State and Harris County’s interpretation of the Texas Election Code was to use the method the Legislature specified in the Texas Election Code: to bring a claim in state court, see Tex. Elec. Code § 273.061 (giving mandamus jurisdiction to the Texas Supreme Court over actions against election officials). The system is working exactly as the Legislature designed it. And, the state authorities the Legislature has charged with interpreting state law have agreed with Harris County and the Secretary of State. . . .

Just yesterday (in an emergency Sunday session), the State Supreme Court of Texas tossed the GOP claim, per the last paragraph — and it was so clearly a loser, the Court issued no opinion — just an order dumping them out of court. Onward, grinning — ever grinning.


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