The Electoral College has officially recognized Joe Biden as the next President of The United States, bringing him one step closer to the White House — and President Donald Trump one step farther from overturning the election. Trump's attempts were further thwarted last week after the U.S. Supreme Court rejected a lawsuit by the Texas attorney general to upend the certification of votes in four battleground states. GBH Morning Edition host Joe Mathieu spoke with Northeastern University law professor and GBH News legal analyst Daniel Medwed about that case from Texas and why it was ultimately struck down by the Supreme Court. The transcript below has been edited for clarity.
Joe Mathieu: I think a lot of people are confused about this Texas case and what it takes for the Supreme Court to have jurisdiction over a case. I'm not sure the president, based on what he said, understood either. This is not the typical way that cases reach the court.
Daniel Medwed: You're right, Joe. The typical way is you file a case in a state or federal trial court, and after you lose, you pursue all of your appellate options up the chain until you have exhausted them. Then you have 90 days in which to file a petition. It's called a petition for a "writ of certiorari", where you ask the Supreme Court to take your case. And if four of the nine justices are sufficiently intrigued, they'll grant you cert, order the record to be sent over to Washington and they'll put your case on the calendar. That's the typical process.
Mathieu: And how easy is it — I'm assuming not — to convince the court to grant your cert petition?
Medwed: It's much easier, like so many things in life, to be said than done. First, the odds are stacked against you, statistically. There are about 7,000 to 8,000 cert petitions filed each year and the Supreme Court normally takes no more than 80, and often quite a few less. Second, the court generally only has jurisdiction over cases with federal questions that involve an issue of federal constitutional law or at least federal statutory law. They can't touch matters of pure state law as a matter of state sovereignty. And finally, the Supreme Court's own rules exhibit a preference for certain types of cases, namely cases where there's either a circuit split — a division within the lower courts over how to interpret a legal principle and the Supreme Court needs to provide uniformity — and/or where the underlying facts in the case relate to a pressing issue of national significance, like same sex marriage or abortion. So that's the typical route. But what the Texas Attorney General Ken Paxton did is he sought a very unusual route, which was to invoke the original jurisdiction of the Supreme Court, bypass this entire cert process and go directly to the Supremes right out of the gate.
Mathieu: So you said it, "#originaljurisdiction", Daniel. What does that mean here? Which ones fall under that category, and who thought this would fit?
Medwed: So under Article III, Section 2 of the Constitution, for people who are counting, the Constitution gives original jurisdiction to the Supreme Court over disputes between two or more states or between one state and a federal power. So Attorney General Ken Paxton here was quite shrewd, at least in framing this complaint. He cabined it as a dispute between Texas and these four battleground states: Georgia, Michigan, Pennsylvania, and Wisconsin. His claim [without any evidence] was that Texans were injured because of the allegedly fraudulent certification of votes in those four states that had the effect of diluting the voting power of Texans. That's how he framed it and that's how he tried to invoke the original jurisdiction authority.
Mathieu: Boy, all right. There's a lot there. This is helpful, though. So why then did the Supreme Court reject the case in the end? Did they disagree with the characterization of the dispute as actually being between different states?
Medwed: Well, it's quite interesting. So [the Supreme Court] refused to hear the case based on a slightly different principle. Even if this were treated as a dispute between two or more states, the plaintiff — Texas — like every plaintiff in every case, had to show that they had standing to sue, that the certification process in those four states had actually injured Texans. And the Supreme Court emphatically said no, that Texas hadn't shown a recognizable interest in the manner in which another state conducts its election. And with that blunt statement, I think the court basically put an end to Trump's efforts to overturn the election through the judicial process.
