The Western Journal recently published an important legal memo, produced by conservative legal scholars, William J. Olson and Patrick M. McSweeny, advising President Trump’s legal team on next steps to take in the ongoing lawsuits disputing the results of the 2020 election. The memo was designed as a rebuke to the U.S. Supreme Court’s refusal to take up a major multi-state lawsuit headed by the Texas attorney general targeting Pennsylvania, Georgia, Michigan and Wisconsin for alleged voter fraud.
The Supreme Court’s decision to not take up the suit on the grounds that Texas did not demonstrate that the voter fraud occurring in the four targeted states had adversely affected Texas’s impact on the results of the 2020 election. By this, the Supreme Court rejected the case not on its merits, but merely because “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections,” according to text from the Court’s unsigned ruling.
The ruling was headed by 7 Justices, with the only 2 dissenters being conservative Justices Thomas and Alito, who argued that the Court does not have the right to deny a case that is clearly within its original jurisdiction; meaning that the Supreme Court is the only judicial body with the authority to mediate legal disputes involving two or more states, according to Article III section II of the Constitution.
Olson and McSweeny echo Alito and Thomas’s dissent, arguing that the Court “abdicated its constitutional duty to resolve a real and substantial controversy among states that was properly brought as an original action in that Court”, and going so far to claim that this lawsuit proposed by Texas represents “the most important inter-state constitutional case brought to it in many decades, if not ever.”
Despite the Supreme Court’s rejection of the lawsuit, Olson and McSweeny argued that it was still possible for another challenge to reach the Court’s attention, if the argument arose that the recorded instances of voter fraud and irregularity violates the U.S. Constitution and thus harmed not only Texas, but the entire nation as a whole.
By this, they encourage a case to be filed directly by the United States, which is traditionally handled by the solicitor general who serves as the federal government’s primary lawyer for any case in which the United States is a party, against another state or states, such as Pennsylvania, Wisconsin, Michigan, and Georgia. The new suit proposed by Olson and McSweeny would follow the original Texas suit and adopt an order to invalidate the appointed electors by these four states which refused to follow the guidelines of the Presidential Electors Clause, in Article II Section I of the Constitution.
This would allow the state legislatures in those four states to directly appoint electors as required by the U.S. Constitution. This would remedy the proposed violation of the Constitution when the four states in question imposed an injury to the United States by allowing electors to be appointed and certified in a manner that was not arranged by the state legislature; an example being in Pennsylvania where the state Supreme Court side-stepped the state legislature and violated election law to extend mail-in ballot deadlines.