On Nov. 9, 2016, after Donald Trump was elected president, I hopefully posted on Facebook that “We still have a free press and an independent judiciary.” Several times during Trump’s reign, I reiterated my faith that “an independent judiciary will save this democracy.” And so it came to pass last Friday.
On Dec. 11, 2020, the Supreme Court put an end to a lawsuit by the State of Texas against four pivotal states where Joe Biden garnered more votes than Trump. Specifically, the Court denied a motion by the State of Texas to allow it to file the suit, and the Court denied all of the requests by the State of Texas to effectively undo the election as moot. The Court threw out the case based on a lack of standing, which Trump denounced as a “technicality.” The perpetually sore loser and vexatious litigant whined to Fox News that all of his unsuccessful lawsuits had failed based on “little technicalities, like a thing called standing.”
The supposed “technicality” called standing is found in Article III of the U.S. Constitution, the one Trump falsely promised to uphold and protect. In the same article that created the judicial branch of government, the framers limited the power of that branch to deciding only cases or controversies.
Why is there a standing requirement in the law? It is part of the separation of powers, which prevents judges from acting like legislators or members of the executive branch. The standing requirement limits the power of the courts to their proper role of dispensing justice only to those who actually need it. The standing requirement prevents parties from wielding power by using judges as their agents. Since only parties with standing may advance lawsuits, people cannot use the courts as mechanisms to advance personal agendas that are not connected to legally protected interests. The standing requirement exists to protect the rule of law, and to prevent the abuse of power.
The standing requirement means that one can only pursue a lawsuit where one has suffered, or will imminently suffer, an actual injury. What is an injury for the purpose of standing? It is the violation of a right that the law recognizes, i.e., the invasion of a legally protected interest.
The law does not protect everyone’s interest in everything. I’d like to see Donald Trump brought to justice for failing to protect the American people from the pandemic. However, I have no concrete injury to redress through a lawsuit against him because I have not contracted COVID (fortunately). The law does not recognize or protect my personal interest in seeing Donald Trump punished for his callous incompetence. I’d like to see him prosecuted criminally for tax fraud, but I have not lost money as a result of his tax avoidance schemes. I cannot sue him for tax fraud because the law does not recognize or protect my interest in wanting Trump to play by the rules.
Texas Attorney General Ken Paxton had a personal interest in seeing Donald Trump re-elected as president. The Republican AG did what he could to prevent Texans from voting, by attempting to prohibit mail-in ballots and severely limiting the number of ballot drop-off locations for those who didn’t want to risk contracting COVID by standing in line to vote. Mr. Paxton felt aggrieved that other states actually made it easier for their citizens to vote. Texas felt it had the right to suppress the vote in Pennsylvania, Georgia, Wisconsin and Michigan, where mail-in voting allowed Joe Biden to beat Donald Trump. That is not a right the law protects.
Texas had no legitimate interest in suppressing the vote outside its state borders. Ken Paxton has no right to manipulate the outcome of an election in a representative democracy. By dismissing the Texas case against states that voted for Biden, the Supreme Court effectively decided that Texas doesn’t have the right to tell other states how to keep people’s votes from counting. That is not just a technicality.