The four states being sued by Texas filed their briefs opposing Texas yesterday afternoon and this morning Texas filed its reply brief.

It appears to me that the defendant states know that they lose on the merits. They clearly did not follow the constitution and they know it so they are arguing the same bullshit they did in their state courts. Basically, they are arguing procedural issues not substance. For example in one state at the state level they argued what amounts to doctrine of laches which basically means you filed too late and should have filed earlier. This is not the same as a statute of limitations argument where by law you have to file suit by a specific time. It’s similar in effect though and in the case I speak of the state court would have thrown out the suit if it had been filed before the election because they would have said they had no standing because they hadn’t been harmed until the vote occurred. The classic Catch-22.

I am unaware of any case where the Republicans were actually allowed to have discovery or present evidence. I could be wrong but I don’t think evidence has been presented only in legislative hearings.

Now these states are trying to claim before the Supremes that this has already been adjudicated and so the doctrine of res judicata should be applied although I don’t believe they actually used those words. Res judicata means it’s already been decided. And importantly it only applies to the parties to the lawsuit. For example if I sue you for some fraudulent activity and lose I can’t sue you again for the same thing. However anyone else who may have been affected by the same fraud can still sue you.

Importantly, Texas was not a part of any of these state court suits and therefore their rights have never been adjudicated and res judicata doesn’t apply.

The defendants also argued that Texas wants the Supremes to decide the election for Trump. As I indicated yesterday, that’s not what Texas is seeking. They want these four states to follow the constitution in this election so as to protect the constitutional votes of its citizens.

Now my prediction is that they will take the case because they are the only court who can and if they decline then they will have decided that the constitution is just an old document in the National Archives. In case you don’t know Justices Thomas and Alito stated, I believe four years ago, that when one state sues another on non frivolous grounds they are required to take the case. So the question becomes, do the three justices appointed by Trump because they are originalists follow the constitution or duck their responsibility?

If they take the case, Trump will win and here’s why. As I said earlier, even Michigan, Wisconsin, Pennsylvania and Georgia know they violated the constitution with the changes they made without legislative approval.

So what remedy could the Supremes order. First they could order a new election in those four states but that is highly unlikely given the time frame. The second thing they could and should do is issue a TRO — temporary restraining order — to prevent these states from certifying electors in their state until after they decide the case, and there is one more option which I have already discussed and so will put aside for a moment.

What I find interesting is what would happen if they entered the TRO. The electoral college is set by statute to meet Monday to elect the president. If the Supremes prevent these four states from certifying their electors then neither Trump nor Biden will have the requisite 270 votes and that constitutionally would send it to the House where Trump wins. However, Congress could change the law and put off the electoral college vote until later. In our history the electoral college has met as late as the first week in January. I suspect that they would put it off.

That gets us to the other option previously discussed, namely that the Supremes send it back to the legislatures of these four states to exercise constitutional authority to determine which set of electors get certified. At that point the question becomes do the Republican legislators have the balls to vote for their party and if they don’t they should lose their next election.