OPINION: Dershowitz is Right, Shapiro is Wrong: Texas v. Pennsylvania Case Had Legal Standing


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On December 11th, the Supreme Court declined to hear the Case of Texas v. Pennsylvania, Et. Al., which represented President Trump’s best shot at stopping the theft of the 2020 election – at least in the courts.  

The Court’s justification for its refusal was lack of standing.  Texas sued Pennsylvania and other swing states alleging that those states violated the U.S. Constitution’s Article II Section I by changing their election laws without consent from their legislatures.  The Court, in effect, ruled that this was none of Texas’s business, stating, “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.”

Within hours, two well-known attorneys/pundits weighed in on the decision: retired Harvard law professor Alan Dershowitz and The Daily Wire founder Ben Shapiro. 

Dershowitz, a Democrat and a former attorney for Trump, felt the Supreme Court got it wrong, telling Newsmax TV that the conservative justices who dissented (Alito and Thomas) “get the better of the argument.”  Dershowitz argued that the Court simply didn’t want to get involved, noting ”I think this sends a message. It’s not a legal message, but it’s a practical message: the Supreme Court is out of this game.”

Shapiro, a conservative columnist and author, said the Court got it right.  In a YouTube video, Shapiro argued that states’ rights, and the principles of federalism, would have been violated had the Supreme Court granted Texas standing.  As an example to illustrate his point, he claimed that Texas getting standing to sue Pennsylvania over Pennsylvania’s voting laws would allow liberal states like California to sue conservative states over how those states draw their congressional district lines.  

Which of these two attorneys is correct?  As an attorney myself – it’s Dershowitz.  

First, although experience doesn’t always equal truth, Dershowitz is the more reliable authority.  He has been a law clerk (legal researcher and writer) for a Supreme Court Justice, as well as for a federal Court of Appeals justice.  He was a Harvard law professor for nearly fifty years and, unlike many law professors, actually practiced in his field, taking cases on behalf of numerous high-profile clients over the course of his university tenure.  

Shapiro, on the other hand, lacks extensive legal expertise.  He practiced law for a few years after graduating law school (five at most), subsequent to which his career has been devoted to political commentary.    

But what about the legal issue itself?  Let’s delve into that.  

Quite simply, the Supreme Court is wrong.  In general, to establish standing, a plaintiff merely needs to show that they suffered clear harm to a legally protected interest as a result of another party’s actions.  Since Texas was undoubtedly harmed by an illegally run election in Pennsylvania that resulted in a victory for a candidate Texas didn’t vote for, standing, on the face of the matter, is clear.  

Moreover, granting Texas standing here would not result in Shapiro’s concerns being realized.  In Shapiro’s scenario, California would be asking for standing to sue a state (maybe Texas) for drawing congressional district lines in a way that might cause a certain candidate to have an advantage who – assuming they are elected – might vote in such a way, as one of 435 House members – as to damage California (whose own congressmen could potentially block the action).  That’s quite a bit less worthy of standing than a Texas lawsuit over who the next president will be.  In short, the two scenarios are what lawyers call “distinguishable.”  

Moreover, it doesn’t matter if California sues Texas at some future date.  If Texas is acting within the bounds of the law it can simply explain that – and as Shapiro is well aware, states get sued over how they draw district boundaries all the time anyway.  Better for the present issue of an illegal election to be dealt with than to ignore it merely because, at some future time, California could sue Texas over something else.  

The fact that no court has given a full hearing to the issues surrounding this election is appalling.  If the courts don’t step in and hear these cases, America’s future is at a crossroads.  The president’s supporters simply cannot afford to accept the results of election theft – another year of shutdowns and economic devastation by Democrats to start with – but this time imposed on the whole nation.

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