Mealy-Mouth Brnovich Saved by the Bell

 

I was going to file this Monday.  AG Brnovich doesn't know it, but he was saved by the bell.

Media reports list Arizona as one of the states entering the suit on the side of Texas, but that's not accurate. Arizona, through Brnovich, moved tor leave to file an amicus brief, but made it clear its brief would essentially say nothing. I don't know how many more of the "18 other states" made or proposed similar filings.

Of the two main reasons for the US Supreme Court to refuse to touch the case, Plaintiff Texas' lack of standing and non-justiciability under the political question doctrine, I believe the latter would have been the better choice.

No. 22 O 155

In The

Supreme Court of the United States

_________________

STATE OF TEXAS,

Plaintiff,

v.

COMMONWEALTH OF PENNSYLVANIA, ET AL.,

Defendants.

_________________

On Motion for Leave to File a Bill of Complaint and Motion for Injunctive Relief, etc.

MOTION FOR LEAVE TO FILE BRIEF
of Brian K. Stanley as Amicus Curiae

 

Motion for Leave to File Brief as Amicus Curiae

Pursuant to Supreme Court Rule 37.2(b), the attorney undersigned respectfully moves for leave to file the accompanying brief as amici curiae. Because of the emergency nature of this action, the proposed amicus has been unable to secure the consent of the parties.

This proposed amicus is an Arizona citizen who is embarrassed by the state’s Motion for Leave to File an Amicus Brief.  It is difficult to understand the motivation behind this mealy-mouthed, neither-for-nor-against doc­ument, unless it is to enable Attorney General Brnovich to tell a fractious and illiterate portion of the populace that he sure has joined in on that Texas “big show” lawsuit without incurring too much professional embarrassment.

Arizona says that its proposed brief would argue that (1.) “election integrity is of paramount importance” and (2.) “if this Court exercises jurisdiction over Texas’s complaint, it is equally important that the Court act quickly.”

“Argument” 1 is merely an unhelpful platitude.  Argument 2 also states an incontrovertible proposition while providing no direct assistance to the Court.  Arizona ought to have pursued this point further:  (A.) If the Court were to take jurisdiction of Texas’ proposed action, it would be critically important to the life of the Nation that such action be resolved very quickly.  (B.) Texas’ proposed action, if entertained by the Court, could not be resolved quickly.  Therefore (C.) It is critically important to the life of the Nation that the Court decline to take jurisdiction of Texas’ proposed action.

Arizona could make this argument without com­promising its traditional position that the Court’s original jurisdiction of actions between states is non-discretionary simply by recognizing that under the established “political question” doctrine Texas’ proposed complaint is non-justiciable ab initio.  The point is well made in Part II, pp. 12 – 16 of Georgia’s opposition memorandum.  Arizona would make a helpful contribution by simply joining in this part of Georgia’s opposition.

Arizona could go further and amplify the political question argument:

A controversy is nonjusticiable – i. e., involves a political question – where there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it … .”

Baker v. Carr, 369 U. S. 186, 217 (1962).

Article II, § 1 of the Constitution and the XII^th Amendment demonstrate textually the commitment of Presidential elections to the state legislatures, the electoral college and Congress, each of which must be recognized, for Presidential election purposes, as a “coordinate political department.”  But now the second alter­native limb of the political question test is equally if not more important.  The lack of judicially discoverable and manage­able standards for resolving Texas’ proposed complaint would alone be sufficient reason for refusing to entertain it.  Even a cursory review of Texas’ lengthy and multifarious complaint will convince the reader with any experience of legal procedures that it is a roadmap for years or decades of litigation.

Some tortuous legal problems are presented, such as drawing a boundary between permissible administrative regulation and practice and impermissible executive revision of legislatively imposed requirements (as well as distinguishing between actions election administrators are required to perform and actions they are permitted to perform).  E.g., Proposed Complaint ¶¶ 62, 63.  While such questions were argued and briefed to, then decided by, a special master,[1] the master’s report considered by the Court and the Court’s opinion(s) drafted, who would have his finger on the nuclear launch button?

But the serious legal issues raised by the Proposed Complaint[2] are discernable and manageable through judicial child’s play compared with some of the potential fact issues.  Such abstruse expert questions as underlie Texas’ “quadrillion to one” statistical claim (¶ 10) would be bad enough.  But the really fact-intensive issues, such as whether exclusion of unsigned mail-in ballots would affect the outcome in Pennsylvania (¶¶ 41 – 46) or whether the “premature removal of ballots from their locked containers” in that state (¶51) affected any votes at all, are clearly unmanage­able within any realistic allocation of judicial resources or acceptable period of time.

Further, entertainment of Texas’ suit would invite countersuits by the states that president-elect Biden carried, who would naturally and rightly want recounts in other states to see if Trump would have won the states in his column if mail-in ballots were excluded.  Taking juris­diction of Texas’ complaint might not destroy the Nation, but it would certainly destroy the Court.

Arizona says it wants to argue that if the Court accepts jurisdiction it will be vitally important that it resolve the action quickly.  It ought to have looked more seriously at the Proposed Complaint and recognized that Texas’ complaint could not, within any tolerable period of time, be resolved in any judicially respectable fashion, and it should have drawn the conclusion that the established political question doctrine must be applied to rule this controversy non-justiciable.

December 14, 2020.        Respectfully submitted,

                                      /s/Brian K. Stanley
                                       Brian K. Stanley
                                      1938 E. Osborn Rd.
                                      Phoenix, Arizona 85016
                                      602-956-9201
                                      court@brianstanleylaw.com
                              

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[1].       The alternative to the usual referral-to and report-by special master procedure, i.e., original trial proceedings before a nine-judge court, is unthinkable.  Imagine votes, majority opinions, dissenting and concurring opinions, on every procedural motion and evidentiary objection.

[2].       Most of them are decidedly non-serious, such as the argument that state authorities violated election laws by informing the public about the option to apply for a mail-in ballot.  Proposed Complaint ¶¶ 81 and 82.