Although many are relieved if not overjoyed that the U.S. Supreme Court has overwhelmingly rejected the lawsuit brought by Texas to challenge Trump’s presidential election results in four other states, that doesn’t necessarily mean that this very strange lawsuit is absolutely and completely dead and he cannot win. Public interest law professor John Banzhaf, who has won several cases virtually all experts considered impossible, and helped establish a novel precedent regarding legal standing, notes the following scenario.
The Supreme Court rejected the case because, it said, Texas lacked legal standing, since it could not show that its own interest as a state had been injured; in other words, Texas could not show that it could even possibly suffer an injury.
But President Trump can make that very claim, arguing that if the various theories argued in the Texas case were correct, he would have won the Electoral College.
In other words, Trump, unlike Texas, can claim what the law calls an “injury in fact,” the major criteria necessary to claim standing.
So, at least theoretically, lawyers for Trump could copy virtually the entire case, including the novel theories and claims it contained, and file it in his own name because he would be in a much stronger position to claim legal standing.
Standing For Trump’s Texas Lawsuit
Since Trump is an individual and not a state, he would have to file his case in a lower court, not the Supreme Court, but theoretically he could do it.
Even if Trump has legal standing, says Banzhaf, who managed to get standing for his law students to challenge environmental harm to the entire country just after the Sierra Club’s environmental law suit was rejected by the Supreme Court for lack of standing, it would still have all of the weaknesses if not weirdnesses of Texas’ Supreme Court law suit, and is probably no more likely to be heard, much less won.
But Trump filing a lawsuit based on Texas’s legal theories is no more bizarre and farfetched than the original Texas suit itself, argues Banzhaf, who doubts that even Trump would try a second Hail Mary.