Anyone want to try and come up with a defensible explanation for why Texas couldn't sue until after the results were certified? Especially since the usual process is to sue over bad processes before the election.
Standing. Look at the twin concepts of laches and ripeness. TX's standing was not ripe in advance of the election and now the defendants are arguing laches bars them after. Effectively, as you've seen in multiple court cases across the country, apparently no one has standing to challenge illegality in the election. That's a real serious problem.
This TX suit is actually brilliant. They've backed the SC into a corner where whatever they do will have dramatic and severe consequences. If you've read the filings (which I have), TX's claim converts the DNC practice of using court cases and abusing executive discretion to change election rules, which is something they are really good at and have therefore been using with increasing frequency, into the very basis of its cause of action. It's like a judo move that turns your opponent's strength against them. TX's claim is not based on whether fraud actually occurred but rather based on violations of the Constitution inherent in usurping legistlative authority. Effectively, using state courts and heads of executive agencies to undermine election laws passed by the legislature is charged as a violation of the US Constitution.
In the plain language of the Constitution TX is correct. As Rehnquist pointed out during Bush v. Gore, the FL SC can not overturn the legislature's decisions on how to conduct the election, that is not a matter of
state law. The Constitution specifically appoints the state legislature as the body responsible for the appointment of electors, and no other official or even the state constitution can remove that authority.
The defendants most likely source of success is that the SC will refuse leave for TX to file the complaint. Oddly, the SC views it's own option to allow such a filing as purely a matter of discretion. If they just decline the case, it's done. Alternatively, they could take the case and rule either that TX doesn't have standing or that it's claim is barred by laches or because there is no remedy available.
However, every single choice on this is fraught with massive consequences. Refusing the case on discretion effectively means that there is no recourse for violation of the Constitutional limits and controls on the Constitution. It may also push TX to seriously consider seceding from the US (and I'm not exaggerating there, refusing the case is tantamount to taxation with representation).
Taking the case and denying standing has a very similar result, though arguably the strongest "denial" position at law.
Taking the case and declaring it barred by laches is in many ways even worse as it means there will effectively never be a remedy for election interference by a state's officers so long as the state court politically agrees (and remember, many state SC's are elected positions). For example the PA SC that approved the changes is elected and currently has 5 Democrats and 2 Republicans. The PA legislature was Republican controlled, it's AG and Governor are Democrats. In that backdrop you have a part time Republican legislature pass (actually on a bipartisan basis) clear election laws, which were modified by its Democrat AG (in collusion by settlement of a law suit filed by a group of DNC friendly voters) and modified further by the DNC majority of its SC. Even those changes undermined the ballot security included by the legislature in its voting law (which is where mail in ballot voting access was increased) they were never referred back to approved by the legislature. That looks like a specific violation of the Constitution for which there seems to be no other remedy.
Speaking of remedies, if the SC says this was a violation of the Constitution and you do have standing but there's no remedy we can offer, that pretty much makes clear that there will never be rules that are fair on this and that might will always make right.
If they do take it, the Constitution is in favor of TX, but the precedents probably provide more support to the defendants. But the consequences of deciding in favor of either group are massive. Deciding against TX means that any legal or administrative trickery going forward and any court intrusion is presumptively okay. We can expect MASSIVE manipulation going forward as well as thousands of lawsuits to be filed in advance of elections seeking to manipulate the rules. On the other hand deciding for TX almost certainly causes a massive voter confidence problem. While a big group of Republicans are currently convinced that the election was illegitimate, the SC's involvement will ensure that EVERY DNC voter believes that the election has been stolen.
Ultimately, this mess is the direct result of DNC activists using the courts and abusing discretion to create this mess. That created the circumstances under which it's impossible to actually verify the legal voting results in these states and any resulting consequence to those states is a direct result of those unConstitutional actions. If a consequence is applied it's a direct smack down of the increasingly popular and undemocratic manipulation of the voting process that activist lawyers have engaged in. Still I think the SC is going to find someway to avoid the situation, wrongly I think, believing that this is the better way to "avoid" a consequential decision.
Odd to think Joe Biden's election may trigger the end of the country as we know it, but we seem to be close.
