No.

22O155

In the Supreme Court of the United States

STATE OF TEXAS, PLAINTIFF

v.
COMMONWEALTH OF PENNSYLVANIA,
STATE OF GEORGIA, STATE OF MICHIGAN, AND
STATE OF WISCONSIN, DEFENDANTS

ORIGINAL ACTION

STATE OF MICHIGAN’S BRIEF IN

OPPOSITION TO MOTIONS FOR LEAVE TO
FILE BILL OF COMPLAINT AND FOR
INJUNCTIVE RELIEF

Dana Nessel
Michigan Attorney General

Fadwa A. Hammoud
Solicitor General
Counsel of Record
P.O. Box 30212, Lansing, MI 48909
[email protected]
(517) 335-7628

Heather S. Meingast
Erik A. Grill
Assistant Attorneys General
Civil Litigation, Employment &
Elections Division
Attorneys for Defendants
 i

QUESTIONS PRESENTED
1. Whether various jurisdictional deficiencies
should persuade or otherwise prevent this Court from
exercising original jurisdiction over the proposed bill
of complaint?

2. Whether the bill of complaint should be dis-

missed where Petitioner fails to state a claim upon
which relief may be granted as to any of the alleged
constitutional violations?

3. Whether Petitioner’s requests for injunctive re-

lief, or alternatively, a stay, should be denied?
 ii

PARTIES TO THE PROCEEDING

Plaintiff is the State of Texas and Defendants in
the proposed Bill of Complaint are the Commonwealth
of Pennsylvania, the State of Georgia, the State of
Michigan, and the State of Wisconsin.
 iii

TABLE OF CONTENTS

Questions Presented .................................................... i

Parties to the Proceeding ........................................... ii
Table of Authorities ................................................. viii
Jurisdiction ................................................................. 1
Introduction ................................................................ 2
Statement of the Case ................................................ 4
Michigan certified the November election .... 4
The claims against Michigan......................... 5
Michigan Secretary of State .................... 5
Davis v. Benson ................................. 5
Election Integrity Fund, et al. v.
Secretary of State. ............................. 7
City of Detroit officials ............................ 9
Donald J. Trump for President,
Inc., et. al. v. Secretary of State. ....... 9
Costantino, et. al. v. City of
Detroit, et. al. ................................... 10
Texas’s claims against Detroit
have been rejected. .......................... 12
Other Michigan and federal courts
have rejected similar legal claims
against the state. ................................... 17
Johnson, et. al. v. Whitmer, et. al. .. 17
King, et. al. v. Benson, et. al. ........... 18
Reasons for Denying the Complaint ........................ 19
 iv

I. This Court should decline to exercise original

jurisdiction over this case. ................................. 19
The factors for invoking original
jurisdiction are not present. ........................ 19
There is no case or controversy
supporting jurisdiction. ......................... 20
The discretionary factors do not
support jurisdiction. .............................. 21
The doctrine of laches bars review of the
bill of complaint............................................ 24
II. The bill of complaint should be dismissed
because Petitioner fails to state a claim upon
which relief may be granted as to any of the
alleged constitutional violations. ....................... 26
The Electors Clause claim fails as a
matter of law. ............................................... 26
Texas lacks standing to challenge
Michigan’s election results. ................... 26
Michigan has not violated the
Electors Clause. ..................................... 29
The Equal Protection Clause claim fails
as a matter of law. ....................................... 32
The Due Process Clause claim fails as a
matter of law. ............................................... 35
III. Texas fails to satisfy the requirements for
injunctive relief................................................... 36
Texas has no likelihood of succeeding
on the merits of its claims. .................... 36
Texas will suffer no irreparable harm
absent an injunction. ............................. 37
 v

Michigan will suffer critical harm if

the requested injunction is issued. ....... 37
The public interest will be harmed if
the requested injunction is issued. ....... 38
Conclusion ................................................................. 39

RESPONSE APPENDIX TABLE OF CONTENTS

Michigan Court of Claims

Trump v. Benson
Case No. 20-225-MM
Verified Complaint
Filed: November 4, 2020 ................................... 1a–12a

Michigan Court of Claims

Trump v. Benson
Case No. 20-225-MM
Opinion and Order
Filed: November 6, 2020 ................................. 13a–18a

Wayne County Circuit Court

Costantino v. Detroit
Case No. 20-14780-AW
Complaint
Filed: November 8, 2020 ................................. 19a–45a

Wayne County Circuit Court

Costantino v. Detroit
Case No. 20-14780-AW
Affidavit of Christopher Thomas
Filed: November 11, 2020 ............................... 46a–59a
 vi

Wayne County Circuit Court

Costantino v. Detroit
Case No. 20-14780-AW
Affidavit of Opinion & Order
Filed: November 13, 2020 ............................... 60a–74a

Wayne County Circuit Court

Stoddard v. Winfrey
Case No. 20-14604-CZ
Opinion & Order
Filed: November 6, 2020 ................................. 75a–81a

Michigan Supreme Court

Johnson v. Benson
Petition
November 26, 2020 ....................................... 82a–153a

Michigan Court of Claims

Cooper-Keel, J.D. v. Benson; Case No. 20-91-MM
Black v. Benson, Case No. 20-96-MZ
Opinion and Order Denying
Preliminary Injunction
Issued June 18, 2020 .................................. 154a–162a

Michigan Court of Claims

Cooper-Keel, J.D. v. Benson; Case No. 20-91-MM
Black v. Benson, Case No. 20-96-MZ
Davis v. Benson, Case No. 20-99-MM
Opinion and Order Granting
Summary Disposition
Issued August 25, 2020............................... 163a–175a
 vii

Michigan Court of Claims

Election Integrity Fund v. Benson
Case No. 20-169-MM
Verified Complaint
Filed August 24, 2020 ................................. 176a–206a

Michigan Court of Claims

Election Integrity Fund v. Benson
Case No. 20-169-MM
Declaration and Verification of
Jonathan Brater
Dated: October 9, 2020 ............................... 207a–212a

Michigan Court of Claims

Election Integrity Fund v. Benson
Case No. 20-169-MM
Opinion and Order
Filed: October 26, 2020 ............................... 213a–219a

Meeting of the Board of State Canvassers

Draft Minutes
November 23, 2020 ..................................... 220a–222a

Canvass and Certification of the

November 3, 2020 General Election
with Excepts of Transcript Pages 1 to 13
November 23, 2020 ..................................... 223a–240a
 viii

TABLE OF AUTHORITIES

Cases
Albright v. Oliver,
510 U.S. 266 (1994) ............................................ 36
Allen v. Wright,
468 U.S. 737 (1984) ............................................ 27
Arizona v. New Mexico,
425 U.S. 794 (1976) ............................................ 20
Benisek v. Lamone,
138 S. Ct. 1942 (2018) ........................................ 24
Bognet v. Sec’y Pennsylvania,
980 F.3d 336 (3d Cir. 2020) .......................... 28, 34
Bracy v. Gramley,
520 U.S. 899 (1997) ............................................ 30
Brown-Graves Co. v. Central States, Southeast
and Southwest Areas Pension Fund,
206 F.3d 680 (6th Cir. 2000) .............................. 24
Bush v. Gore,
531 U.S. 98 (2000) .............................................. 30
Bush v. Palm Beach County Canvassing Bd.,
531 U.S. 70 (2000) .................................. 29, 32, 33
California v. Texas,
457 U.S. 164 (1982) ............................................ 21
Davis v. Secretary of State,
2020 WL 5552822 at *6 (Sept. 2020) ............. 6, 21
Detroit Unity Fund v. Whitmer,
819 F. App’x 421 (6th Cir. 2020) ........................ 24
 ix

Donald J. Trump for President, Inc, et al. v.

Secretary of State, et al.,
Case No. 20-01083 (W.D. Mich. 2020) ............... 19
Gill v. Whitford,
138 S. Ct. 1916 (2018) ........................................ 34
Gracey v. Grosse Pointe Farms Clerk,
452 N.W.2d 471 (Mich. 1989) ............................. 37
Illinois v. City of Milwaukee,
406 U.S. 91 (1972) .............................................. 20
King v. Whitmer,
No. CV 20-13134, 2020 WL 7134198 (E.D.
Mich. Dec. 7, 2020) ....................................... 18, 22
Lance v. Coffman,
549 U.S. 437 (2007) ............................................ 28
Lexmark Int’l, Inc. v. Static Control Components,
Inc.,
572 U.S. 118 (2014) ............................................ 27
Los Angeles v. Lyons,
461 U.S. 95 (1983) .............................................. 37
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ............................................ 27
Maryland v. Louisiana,
451 U.S. 725 (1981) ...................................... 20, 21
Massachusetts v. Missouri,
308 U.S. 1 (1939) ................................................ 20
McPherson v. Blacker,
146 U.S. 1 (1892) ................................................ 30
Minn. Voters All. v. Ritchie,
720 F.3d 1029 (8th Cir. 2013) ............................ 34
 x

Mississippi v. Louisiana,
506 U.S. 73 (1992) .............................................. 22
North Carolina v. League of Women Voters of N.
Carolina,
574 U.S. 927 (2014) ............................................ 38
Ohio v. Wyandotte Chemicals Corp.,
401 U.S. 493 (1971) ............................................ 20
Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89 (1984) .............................................. 20
Purcell v. Gonzalez,
549 U.S. 1 (2006) ................................................ 25
Republican Nat’l Comm. v. Democratic Nat’l
Comm.,
206 L.Ed.2d 452 (2020) ...................................... 25
Reynolds v. Sims,
377 U.S. 533 (1964) ...................................... 32, 33
San Antonio Indep. Sch. Dist. v. Rodriguez,
411 U.S. 1 (1973) ................................................ 35
Serv. Employees Int’l Union Local 1 v. Husted,
698 F.3d 341 (6th Cir. 2012) .............................. 25
Soules v. Kauaians for Nukolii Campaign
Committee,
849 F.2d 1176 (9th Cir. 1988) ............................ 25
Stoddard, et al. v. Detroit Election Commission,
et al.,
Wayne Circuit Case No. 20-014604 ................... 12
U.S. v. Clintwood Elkhorn Min. Co.,
553 U.S. 1 (2008) ................................................ 24
United States v. Richardson,
418 U.S. 166 (1974) ............................................ 27
 xi

Washington v. Gen. Motors Corp.,

406 U.S. 109 (1972) ............................................ 23
Wesberry v. Sanders,
376 U.S. 1 (1964) ................................................ 33
Whitmore v. Arkansas,
495 U.S. 149 (1990) ............................................ 27
Winter v. NRDC,
555 U.S. 7 (2010) ................................................ 36

Statutes
28 U.S.C. § 1251(a) ............................................... 1, 19
3 U.S.C. § 5........................................................ 3, 5, 24
3 U.S.C. § 6............................................................ 5, 31
3 U.S.C. § 7...................................................... 5, 26, 32
Mich. Comp. Laws § 168.22 ........................................ 4
Mich. Comp. Laws § 168.43 ........................................ 4
Mich. Comp. Laws § 168.46 .................................. 5, 31
Mich. Comp. Laws § 168.47 ............................ 5, 26, 32
Mich. Comp. Laws § 168.509gg(1)............................ 15
Mich. Comp. Laws § 168.662 ...................................... 8
Mich. Comp. Laws § 168.672 .................................... 12
Mich. Comp. Laws § 168.674(2) ............................... 12
Mich. Comp. Laws § 168.678 .................................... 13
Mich. Comp. Laws § 168.730 .................................... 13
Mich. Comp. Laws § 168.733(1) ............................... 13
Mich. Comp. Laws § 168.733(2) ............................... 13
 xii

Mich. Comp. Laws § 168.733(4) ............................... 33

Mich. Comp. Laws § 168.734 .................................... 13
Mich. Comp. Laws § 168.759 .......................... 5, 6, 7, 8
Mich. Comp. Laws § 168.759(3) ................................. 5
Mich. Comp. Laws § 168.759(4) ................................. 7
Mich. Comp. Laws § 168.761 .................................. 5, 8
Mich. Comp. Laws § 168.761(2) ................................. 7
Mich. Comp. Laws § 168.764a .................................. 14
Mich. Comp. Laws § 168.765(2) ............................... 14
Mich. Comp. Laws § 168.765a .................................. 12
Mich. Comp. Laws § 168.765a(1) ....................... 12, 14
Mich. Comp. Laws § 168.765a(10) ........................... 12
Mich. Comp. Laws § 168.765a(4) ............................. 12
Mich. Comp. Laws § 168.765a(6) ............................. 14
Mich. Comp. Laws § 168.766 .................................... 14
Mich. Comp. Laws § 168.801 ................................ 4, 31
Mich. Comp. Laws § 168.821 ................................ 4, 31
Mich. Comp. Laws § 168.822 ................................ 4, 31
Mich. Comp. Laws § 168.822(1) ............................... 24
Mich. Comp. Laws § 168.824a .................................. 16
Mich. Comp. Laws § 168.841 .................................... 24
Mich. Comp. Laws § 168.842(1) ............................... 31
Mich. Comp. Laws § 168.842(2) ............................... 24
Mich. Comp. Laws § 168.845 .................................... 24
 xiii

Mich. Comp. Laws § 168.879(1)(c) ....................... 5, 31

Mich. Comp. Laws §§ 168.674–675 .......................... 13

Constitutional Provisions
Mich. Const. art. II, § 4(1)(g) ...................................... 5
U.S. Const. art. II, § 1, cl. 2 .......................... 28, 29, 34
U.S. Const. art. III, § 2, cl. 2 ................................. 1, 19
 1

JURISDICTION
Plaintiff, the State of Texas, seeks leave to file an
original action against Pennsylvania, Georgia, Michi-
gan, and Wisconsin in this Court and pursuant to Ar-
ticle III, § 2, cl. 2 of the U.S. Constitution and 28
U.S.C. § 1251(a).
 2

INTRODUCTION
The Constitution has entrusted the states to de-
termine their electors in a presidential election. Con-
sistent with Michigan law, the State of Michigan has
certified its presidential vote and the election in Mich-
igan is over. The challenge here is an unprecedented
one, without factual foundation or a valid legal basis.
This Court should summarily dismiss the motion to
file the bill of complaint. To do otherwise would make
this Court the arbiter of all future national elections.

The base of Texas’s claims rests on an assertion

that Michigan has violated its own election laws. Not
true. That claim has been rejected in the federal and
state courts in Michigan, and just yesterday the Mich-
igan Supreme Court rejected a last-ditch effort to re-
quest an audit. Not only is the complaint meritless
here, but its jurisdictional flaws abound and provide
solid ground to dispose of this action.

To begin, Texas has not alleged a sufficient case

or controversy to support its standing to invoke this
Court’s original jurisdiction. But even if Texas clears
that hurdle, the Court’s prudential factors weigh
against exercising jurisdiction. Texas does not have a
cognizable interest in how Michigan runs its elections,
and there plainly are alternative forums to raise these
issues. Indeed, the lower courts have already found
that similar claims lack legal and factual merit.

Laches also applies to bar review of Texas’s com-

plaint. Texas delayed weeks and then filed at the last
hour, and that delay has prejudiced Michigan. Michi-
gan certified the election results on November 23. The
 3

State is entitled to enjoy the benefit of the “safe har-

bor” provision created by Congress, 3 U.S.C. § 5.

But even if the Court were to exercise jurisdiction,

there is no merit to Texas’s constitutional claims.

First, Texas lacks standing to bring its Electors

Clause claim where its asserted injury is nothing
more than a generalized grievance that the Clause
was violated. And even if Texas has standing, its sub-
stantive claim fails because Michigan officials did not
violate any of the election laws cited by Texas in con-
ducting its election. Michigan’s election was adminis-
tered lawfully; the Electors Clause was not violated.

Second, Texas’s equal protection claim fails where

it does not identify a group that has been given pref-
erence or advantage—the hallmark of such a claim.
And there has been no devaluation of any person’s—
or group of persons’—votes above or beneath any oth-
ers’. There has been no violation of equal protection.

Third, Texas’s substantive due process claim, as-

suming that is the claim being brought, fails where
the alleged injury—vote dilution—is properly ad-
dressed under equal protection, and it fails there.

Finally, Texas fails to establish any of the requi-

site factors necessary for granting an injunction. It
has no likelihood of success on the merits of its claims,
and the remaining factors strongly weigh in favor of
denying the extraordinary relief Texas seeks—disen-
franchising millions of voters.

This Court should deny Texas’s motion to file a bill

of complaint and its motion for injunctive relief.
 4

STATEMENT OF THE CASE

Michigan, like the other states, held an election on
November 3, to select electors for president and vice
president. See Mich. Comp. Laws § 168.43.

Michigan certified the November

election
Michigan’s elections are decentralized and princi-
pally conducted at the local level by the over 1,600 city
and township clerks. In keeping with that structure,
local jurisdictions began canvassing results immedi-
ately after the polls closed on November 3. Mich.
Comp. Laws § 168.801. The boards of county canvass-
ers commenced canvassing two days later, and the 83
county boards completed their canvasses by Novem-
ber 17. Mich. Comp. Laws §§ 168.821, 168.822.

The Board of State Canvassers, a bi-partisan

board, see Mich. Comp. Laws § 168.22, met on Novem-
ber 23 and certified the results of the election. Mich.
Comp. Laws § 168.842(1). 1 President-elect Biden de-
feated President Trump by 154,188 votes. 2

1 See 11/23/20 Draft Meeting Minutes, Board of State Canvass-

ers, available at https://www.michigan.gov/docu-
ments/sos/112320_draft_minutes_708672_7.pdf.
2 See November 2020 General Election Results, available at
https://mielections.us/election/results/2020GEN_CENR.html.,
(last accessed December 10.)
 5

That same day, Michigan’s Governor certified the

presidential electors to the Archivist for the United
States. Mich. Comp. Laws § 168.46; 3 U.S.C. § 6. 3

No presidential candidate requested a recount in

Michigan within the time permitted. See Mich. Comp.
Laws § 168.879(1)(c). And under federal law, the “safe
harbor” provision regarding a state’s certification of
electors activated on December 8. See 3 U.S.C. § 5.
Michigan’s presidential electors “shall convene” in the
State’s capitol on December 14. Mich. Comp. Laws
§168.47; 3 U.S.C. § 7.

The claims against Michigan.

In its complaint, Texas identifies Michigan’s al-
leged wrongful conduct.

Michigan Secretary of State

In 2018, the people amended Michigan’s Constitu-
tion to provide for no-reason absentee voting and the
right of voters to choose to request an application for
an absent voter ballot by mail or in person. Mich.
Const. art. II, § 4(1)(g). See also Mich. Comp. Laws
§§168.759, 168.761.

Davis v. Benson
Texas alleges that Michigan’s Secretary of State
violated Mich. Comp. Laws § 168.759(3) by mailing
unsolicited absent voter ballot applications to millions

3 See Michigan’s Certificate of Ascertainment, available at

https://www.archives.gov/files/electoral-college/2020/ascertain-
ment-michigan.pdf, (accessed December 10.)
 6

of registered voters, when the statute does not give

her such authority. (Comp., ¶¶ 79–84.)

In May of 2020, the Secretary mailed applications

for absent voter ballots to all registered voters in
Michigan, except to voters in jurisdictions in which lo-
cal clerks indicated they would conduct their own
mailing. 4 The City of Detroit conducted its own mail-
ing. Voters who received the Secretary’s mailing were
free to use the application or discard it and apply for
an absent voter ballot using some other format, or vote
in person.

The Secretary’s mailing was challenged on the ba-

sis that it violated Mich. Comp. Laws § 168.759, and
was contrary to a prior published state appellate deci-
sion. The Secretary prevailed in the three consoli-
dated cases filed in the state court of claims. (MiAppx
163a–175a, Davis Ops.) In September, the Michigan
Court of Appeals affirmed, concluding in a published
decision that it was within the Secretary’s constitu-
tional and statutory authority to mail the unsolicited
applications to registered voters. See Davis v. Secre-
tary of State, 2020 WL 5552822 at *6 (Sept. 2020). An
appeal to the Michigan Supreme Court remains pend-
ing. 5

4 See Benson: All voters receiving applications to vote by mail,

5/19/20, available at https://www.michigan.gov/minews-
wire/0,4629,7-136-3452_3516-529536--,00.html, (Accessed De-
cember 10.)
5 See Michigan Supreme Court Case No. 162007, docket sheet
available at https://courts.michigan.gov/opinions_or-
ders/case_search/Pages/default.aspx?SearchType=1&Case-
Number=354622&CourtType_CaseNumber=2.
 7

Thus, the law in Michigan is that the Secretary

has authority to mail applications to registered voters.
As a result, registered voters who utilized the Secre-
tary’s mailed applications for obtaining a ballot for the
November election did so lawfully.

Election Integrity Fund, et al. v.

Secretary of State.
Texas next alleges that the Secretary violated the
law when she launched an online platform for apply-
ing for an absent voter ballot because Mich. Comp.
Laws § 168.759(4) requires an applicant to sign an ap-
plication, and Mich. Comp. Laws § 168.761(2) prohib-
its a clerk from delivering a ballot to a voter who has
not signed the application, and requires the clerk to
compare the application signature to the signature on
file. (Compl., ¶¶ 85–87.)

The Secretary implemented the platform in June

of 2020, which permitted registered voters who pos-
sessed a Michigan driver’s license or state identifica-
tion card, to apply for an absent voter ballot online us-
ing the voter’s electronically stored signature.
(MiAppx 207a–212a, Brater declaration.) 6

In August, a group filed suit in state court alleging

that the online process violated Mich. Comp. Laws
§168.759 by not requiring a contemporaneous hand-
written signature from the voter and requested in-
junctive relief. (MiAppx 176a–206a, Election Integrity
Compl.) The court denied the motion for a preliminary

6 See Michigan Department of State launches online absentee

voter application, 6/12/20, available at https://www.michi-
gan.gov/sos/0,4670,7-127--531796--,00.html.
 8

injunction based on laches, (MiAppx 213a–219a, Elec-

tion Integrity Op.), and the case remains pending in
the state court.

The State disagrees that any part of this process

is unlawful. These same claims are pending in Michi-
gan’s court of claims. That court declined to enjoin or
limit the operation of the platform in relation to the
November election, and no appeal was taken.

Texas further alleges that “Secretary Benson’s un-

constitutional modifications of Michigan’s election
rules resulted in the distribution of millions of absen-
tee ballot applications without verifying voter signa-
tures as required by MCL §§ 168.759(4) and
168.761(2). This means that millions of absentee bal-
lots were disseminated in violation of Michigan’s stat-
utory signature-verification requirements.” (Compl., ¶
89.) But this allegation is incorrect for several rea-
sons.

First, any voter who utilized the Secretary’s

mailed application was required to complete and sign
the application and return it to the local clerk, who
then performed the signature verification. Mich.
Comp. Laws §§ 168.759, 168.761. For voters who used
the online platform, when the online application was
returned electronically to the voter’s local clerk, the
clerk was still required to review the electronic signa-
ture on the application. (MiAppx 209a–210a, Brater
declaration, ¶7.) Moreover, in both cases, the voter
must still physically sign his or her absent voter bal-
lot, and that signature is then reviewed by the local
clerk upon receipt. Mich. Comp. Laws § 168.662.
 9

Second, to the extent Texas refers to “millions” of

absent voter ballots being disseminated unlawfully,
setting aside the fact that the Secretary’s processes
are not unlawful, there is no way of knowing how
many voters used the Secretary’s mailing to obtain a
ballot absent physically examining every application
in the possession of every clerk in the state. With re-
spect to the online platform, a query could be per-
formed to determine how many voters used the plat-
form to request an absent voter ballot. But in either
case, there is no way to associate the voter who used
a particular application with his or her ballot after it
is voted.

City of Detroit officials

The remainder of Texas’s allegations relate to the
City of Detroit’s election, and to events that purport-
edly occurred at the TCF Center, where Detroit’s 134
absent voter counting boards (counting boards) per-
formed their duties. The TCF Center has been the
subject of several lawsuits.

Donald J. Trump for President, Inc.,

et. al. v. Secretary of State.
On November 4, the Trump committee and a Re-
publican poll challenger filed a complaint in state
court generally alleging that insufficient numbers of
Republican election inspectors or challengers were
present at absent voter counting boards in Michigan,
and that challengers were being denied access to sur-
veillance videotapes of absent voter ballot drop boxes
at absent voter counting boards. (MiAppx 1a–12a,
Trump Compl.) The plaintiffs sought to halt the
 10

canvass. The court denied the plaintiffs’ motion for

emergency declaratory or injunctive relief because
their request for relief was essentially moot and the
Secretary of State was not the proper party since she
did not control election-day activities related to the
presence or absence of inspectors and challengers.
(MiAppx 13a–18a, Trump Order.) Plaintiffs appealed
to the Michigan Court of Appeals, which denied re-
lief. 7 The plaintiffs’ appeal to the Michigan Supreme
Court remains pending. 8

Costantino, et. al. v. City of Detroit, et.

al.
On November 8, voters and Republican challeng-
ers filed suit against Detroit and Wayne County offi-
cials in state court, alleging a litany of errors in the
processing of absent voter ballots at the TCF Center.
Including that: (a) defendants counted ballots from
voters whose names failed to appear in the v oter file;
(b )defendants instructed election workers to not ver-
ify signatures on absentee ballots and to backdate ab-
sentee ballots; (c) election officials received late
batches of ballots that were unsealed ballots without
envelopes; (d) defendants instructed election workers
to process ballots that appeared after the election

7 See December 4, 2020, Michigan Court of Appeals order deny-

ing leave, Docket Nos. 355378, 355397, available at http://pub-
licdocs.courts.mi.gov/coa/public/orders/2020/355378_17_01.pdf,
(accessed December 10.)
8 See docket sheet for Case No. 162320, available at
https://courts.michigan.gov/opinions_or-
ders/case_search/pages/default.aspx?SearchType=1&Case-
Number=162320&CourtType_CaseNumber=1, (accessed Decem-
ber 10.)
 11

deadline; (e) defendants systematically used false in-

formation to process ballots, such as using incorrect or
false birthdays; (f) officials coached voters to vote for
Democrats; (g) unsecured ballots arrived at the TCF
Center loading garage, not in sealed ballot boxes,
without any chain of custody, and without envelopes;
(h) defendants refused to record challenges by Repub-
lican challengers and removed challengers from TCF;
(i) defendant election officials and workers locked cre-
dentialed challengers out of the counting room so they
could not observe the process; and (j) defendant elec-
tion officials and workers allowed ballots to be dupli-
cated by hand without allowing poll challengers to
check if the duplication was accurate. (MiAppx 21a–
23a, Costantino Compl.)

The plaintiffs moved for injunctive relief, asking

the court to order an independent audit to determine
the accuracy of the November 3 election; to prohibit
the defendants from certifying the election results;
and to issue an order voiding the election results.
(MiAppx 43a–44a.) The court denied the motion.
(MiAppx 74a, Costantino Order.) The court concluded
that the claims of fraud and improprieties lacked cred-
ibility and were often based on misunderstandings of
the law and the actual processes that occurred at TCF,
as demonstrated by the affidavit of Christopher
Thomas, Michigan’s former Director of Elections, who
worked at the TCF Center as a consultant for Detroit.
(See MiAppx, 73a–74a; see also MiAppx 46a–59a,
Thomas Affidavit.)
 12

The plaintiffs appealed and both the Michigan

Court of Appeals, 9 and the Michigan Supreme Court,
denied relief. 10 This case remains pending before the
state court. 11

Texas’s claims against Detroit have

been rejected.
Relevant here, a city or township may choose to
establish absent voter counting boards to process and
count absent voter ballots. See Mich. Comp. Laws
§168.765a. Counting boards perform these duties un-
der the supervision of a board of election inspectors
appointed by city or township election officials, which
board must have at least three inspectors, and at least
one inspector from each of the major political parties.
See Mich. Comp. Laws §§ 168.672, 168.674(2),
168.765a(1), (4). “At all times, at least 1 election in-
spector from each major political party must be pre-
sent at the absent voter counting place[.]” Mich.
Comp. Laws § 168.765a(10).

Michigan law also provides for the appointment of

poll “challengers” by political parties. Mich. Comp.

9 See November 16, 2020, Michigan Court of Appeals order deny-

ing leave, Docket No. 355443, available at
http://publicdocs.courts.mi.gov/coa/public/or-
ders/2020/355443_25_01.pdf.
10 See November 23, 2020, Michigan Supreme Court order deny-
ing leave, Case No. 162245, available at http://pub-
licdocs.courts.mi.gov/sct/public/orders/162245_41_01.pdf.
11 A similar case was filed in the same court against virtually the

same officials. See Stoddard, et al. v. Detroit Election Commis-

sion, et al., Wayne Circuit Case No. 20-014604. The court denied
the request for injunctive relief there as well. (MiAppx 75a–81a.)
 13

Laws § 168.730. Challengers have a right to be pre-

sent at a counting board “to observe the counting of
the ballots,” and to engage in other permitted activity.
Mich. Comp. Laws §§ 168.733(2), 168.733(1). 12 An
election official that interferes with the rights of a
challenger may be prosecuted. Mich. Comp. Laws
§168.734. However, an election inspector may expel a
challenger from a counting board for engaging in “dis-
orderly conduct.” Mich. Comp. Laws §§ 168.733(1),
168.678.

Texas alleges that Michigan law “requires that

poll watchers and inspectors have access to vote
counting and canvassing,” citing Mich. Comp. Laws
§§168.674–675. (Compl., ¶ 90.) This allegation is cor-
rect only as to election inspectors. Texas then alleges
that “[l]ocal election officials in Wayne County made
a conscious and express policy decision not to follow
M.C.L. §§ 168.674-675 for the opening, counting, and
recording of absentee ballots.” (Id., ¶ 91.) But Texas
does not otherwise explain how these laws were vio-
lated.

Texas next alleges that “Michigan also has strict

signature verification requirements for absentee bal-
lots” and that Detroit officials violated these require-
ments. (Compl., ¶¶ 92–93.)

Michigan law requires voters to sign the return

envelopes used for delivering their voted ballots to

12Poll “watchers” are not “challengers.”. See The Appointment,

Rights and Duties of Election Challengers and Poll Watchers,
available at https://www.michigan.gov/docu-
ments/SOS_ED_2_CHALLENGERS_77017_7.pdf, (accessed De-
cember 10.)
 14

their local clerk, otherwise the ballot will not be

counted. Mich. Comp. Laws § 168.764a. After an ab-
sent voter ballot is returned to the local clerk’s office,
it is either delivered to the election inspectors in the
voter’s precinct, Mich. Comp. Laws § 168.765(2), or to
a counting board, if the jurisdiction uses a counting
board, Mich. Comp. Laws § 168.765a(1), (6). But in ei-
ther case, the city or township clerk first reviews the
voter’s return envelope and compares the signature to
the voter’s signature in the qualified voter file or on
the registration card. Mich. Comp. Laws § 168.766.

A clerk must stamp the voter’s return envelope

with the date and time it was received and include a
statement that the signature on the envelope matches
the signature on file. Mich. Comp. Laws § 168.765a(6).
In a jurisdiction that uses a counting board, if the
clerk determines that the signatures do not agree, the
absent voter ballot is not delivered to the counting
board for tabulation and is marked rejected by the
clerk and preserved. (Id.) Under this process, signa-
ture comparisons are performed by the clerk before an
absent voter ballot is delivered to a counting board.
Thus, signature comparisons are not performed by
counting boards.

Texas alleges that Detroit officials “ignored” these

“statutory signature verification requirements.”
(Compl., ¶¶ 92–93.) Texas points to the affidavit of
Jessy Jacob, who worked as an election official for De-
troit, stating that she “was instructed not to look at
any of the signatures on the absentee ballots, and I
was instructed not to compare the signature on the
absentee ballot with the signature on file.” (Id., ¶ 94.)
But the instruction to Ms. Jacob was correct since
 15

counting boards do not perform signature compari-

sons. Notably, Jacob’s affidavit was soundly discred-
ited by the state court. (MiAppx 63a–64a, Costantino
Order, pp 3–4.) The court instead found Mr. Thomas
to be more credible. (MiAppx 53a, Thomas Affidavit, ¶
19.)

Texas alleges that these “non-legislative modifica-

tions” resulted in a number of “constitutionally
tainted votes.” (Id., ¶ 96.) But Texas has not shown
any violation of Michigan law occurred.

Texas next alleges that “[a]dditional public infor-

mation confirms the material adverse impact on the
integrity of the vote in [Detroit] caused by these un-
constitutional changes to Michigan’s election law.”
(Id., ¶ 97.) “For example, the Wayne County State-
ment of Votes Report lists 174,384 absentee ballots
out of 566,694 absentee ballots tabulated (about
30.8%) as counted without a registration number for
precincts in the City of Detroit.” (Id., ¶ 97.) “The num-
ber of votes not tied to a registered voter by itself ex-
ceeds Vice President Biden’s margin of 146,007 votes
by more than 28,377 votes.” (Id.)

Michigan is at a loss to explain these allegations.

It is unclear what Texas and Mr. Cicchetti mean by
“counted without a registration number.” If they are
suggesting that they could not determine the number
of registered voters in each precinct, that is infor-
mation that can be obtained under Michigan’s Free-
dom of Information Act. See Mich. Comp. Laws
§168.509gg(1).

They then suggest that the “extra ballots cast”

were likely the result of Detroit election workers at
 16

the TCF Center running ballots through the tabula-

tors multiple times while Republican poll watchers
were obstructed or denied access, or had their chal-
lenges rejected, “as documented by numerous declara-
tions.” (Compl., ¶ 98.) But again, it is unclear why
they think extra ballots or votes were cast. Moreover,
the theories or claims that large numbers of unac-
counted for ballots showed up at the TCF Center, and
that Republican challengers were wrongly denied ac-
cess or had challenges improperly rejected, have been
explained or rejected. (See MiAppx 60a–74a, Costan-
tino Order; MiAppx 48a, 52a, 54–59a, Thomas Affida-
vit, ¶¶ 6, 17, 21, 24–26, 32–35, 39).

Texas also notes that a Republican member of the

Wayne County Board of Canvassers, “determined that
71% of Detroit’s [counting boards] were unbalanced—
i.e., the number of people who checked in did not
match the number of ballots cast—without explana-
tion.” (Compl., ¶ 99.) Michigan law requires the
county boards of canvassers to disclose the number of
out-of-balance precincts that are not reconciled after
the county canvass concludes. Mich. Comp. Laws
§168.824a. But the existence of out-of-balance pre-
cincts does not provide a basis for refusing to certify
results. Further, as the Director of Elections ex-
plained to the Board of State Canvassers, out-of-bal-
ance precincts are a common occurrence, they can
happen for a number of innocuous reasons, and De-
troit improved its performance overall in this election
from that in 2016. (MiAppx 223a–240a, Excerpt
11/23/20 Tr. & 11/23/20 Staff Report.)
 17

Other Michigan and federal courts

have rejected similar legal claims
against the state.

Johnson, et. al. v. Whitmer, et. al.

On November 26, two voters filed a petition for
writ of mandamus in the Michigan Supreme Court
against the Secretary, the Governor, the Board of
State Canvassers and its chairperson. (MiAppx 82a–
153a, Johnson Pet.) The plaintiffs alleged that defend-
ants violated their substantive due process rights un-
der the federal and state constitutions by failing to en-
sure a fair election process (MiAppx 144a–147a, ¶¶
238–256); violated their right to equal protection un-
der the federal and state constitutions by causing the
dilution of their votes (MiAppx 148a, ¶¶ 258–263);
and violated the Electors Clause of the U.S. Constitu-
tion by failing to follow Michigan election law,
(MiAppx 149a, ¶¶ 265–269). The plaintiffs requested
that the court issue an injunction enjoining the Board
from certifying the election and the Governor from
certifying the electors, along with requesting that the
court take possession of election materials. (MiAppx
151a–153a.)

On December 9, the Michigan Supreme Court de-

nied the complaint for writ of mandamus “because the
Court is not persuaded that it can or should grant the
requested relief.” 13

13 See December 9, 2020, Michigan Supreme Court order denying

leave, Case No. 162286, available at https://bit.ly/3qJGedJ.
 18

King, et. al. v. Benson, et. al.

On November 25, several Republican Party elec-
tors filed a complaint and motion for a temporary re-
straining order in federal court against the Secretary,
the Governor, and the Board of State Canvassers.

These plaintiffs allege the same litany of irregu-

larities in the City of Detroit’s election as in the Cos-
tantino case. And plaintiffs allege the same legal
claims presented to the Michigan Supreme Court in
Johnson, and now to this Court. (ECF No. 6, Am.
Compl., King v. Whitmer, No. CV 20-13134, 2020 WL
7134198 (E.D. Mich. Dec. 7, 2020) (Parker, J).) The
plaintiffs requested that the court direct the defend-
ants to decertify the election results; enjoin the Gov-
ernor from sending the electors certificates; order the
Governor to certify results the President Trump won
the election; impound voting machines and software;
order the rejection of various ballots; and declare
other various forms of relief. Id. at *1–3.

On December 7, the district court denied the mo-

tion for injunctive relief. Id. at *13. The court con-
cluded that the Eleventh Amendment barred the
plaintiffs’ claims; that their claims were moot; that
their claims were barred by laches; that abstention
applied; that the plaintiffs lacked standing to bring
their equal protection, Electors Clause and Elections
Clause claims; and that the plaintiffs had no likeli-
hood of succeeding on the merits of their constitu-
tional claims. (Id. at *3–13.)
 19

On December 8, the plaintiffs filed a notice of ap-

peal. See (ECF No. 64, PageID.3332.) 14

REASONS FOR DENYING THE COMPLAINT

I. This Court should decline to exercise

original jurisdiction over this case.
This original action comes too late, after its top ex-
ecutive election officials have confirmed the validity of
Michigan’s presidential vote under Michigan law.
This Court should decline to exercise original jurisdic-
tion, particularly given the other actions pending that
raise these same basic—meritless—challenges. In
fact, just yesterday, the Michigan Supreme Court re-
fused to grant review on a request to “audit” Michi-
gan’s vote. The election in Michigan is over. Texas
comes as a stranger to this matter and should not be
heard here.

The factors for invoking original

jurisdiction are not present.
This Court has consistently held that it has dis-
cretion whether to invoke its original jurisdiction to
hear a “controvers[y] between two or more States” un-
der Article III, § 2, cl. 2 of the U.S. Constitution and
28 U.S.C. § 1251(a). The Court has consistently “reaf-
firmed” that its “original jurisdiction should be in-
voked sparingly.” See, e.g., Arizona v. New Mexico,

14 Three similar lawsuits were filed in federal court but then dis-
missed. See Donald J. Trump for President, Inc, et al. v. Secre-
tary of State, et al., Case No. 20-01083 (W.D. Mich. 2020). Texas
incorporates the exhibits from the Trump case in support of its
complaint. See (Compl., p. 5, n.2.)
 20

425 U.S. 794, 796 (1976) (quoting Illinois v. City of

Milwaukee, 406 U.S. 91, 93–94 (1972)).

This Court is “structured to perform as an appel-

late tribunal, ill-equipped for the task of factfinding
and so forced, in original cases, awkwardly to play the
role of factfinder without actually presiding over the
introduction of evidence.” Ohio v. Wyandotte Chemi-
cals Corp., 401 U.S. 493, 498 (1971). These prudential
considerations apply with particular force here.

There is no case or controversy

supporting jurisdiction.
“In order to constitute a proper ‘controversy’ un-
der our original jurisdiction, ‘it must appear that the
complaining State has suffered a wrong through the
action of the other State, furnishing ground for judicial
redress, or is asserting a right against the other State
which is susceptible of judicial enforcement according
to the accepted principles of the common law or equity
systems of jurisprudence.’ ” Maryland v. Louisiana,
451 U.S. 725, 735–36 (1981) (quoting Massachusetts
v. Missouri, 308 U.S. 1, 15 (1939)) (emphasis added).

Each count of Texas’s Bill of Complaint—although

framed as federal claims—is in reality a state-law
claim that would be barred by the Eleventh Amend-
ment if raised by a citizen of Texas. See, e.g.,
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 100 (1984). The claims against Michigan explicitly
center on allegations that state or local officials vio-
lated state law. (Compl., ¶82, 86–87, 90, 92, ¶132,
137–138, 144.)
 21

The claims are particularly striking as no Michi-

gan court has found a violation of state law, despite a
rash of litigation. And, pertaining to the Secretary of
State’s mailing of absent voter ballot applications,
courts have found that the act did not violate state
law. See Davis v. Secretary of State, 2020 WL 5552822
(Sept. 2020). Similarly, Michigan’s courts have not
found any violation of Michigan’s election law arising
from the counting of absent ballots at Detroit’s TCF
Center. (MiAppx 60–74a, Costantino Order.) It is dif-
ficult to conceive of a greater intrusion upon Michi-
gan’s sovereignty than to have another state hale it
before this Court to answer whether Michigan has fol-
lowed its own laws in its own elections where its own
courts have found no violation. Yet, Texas has done
just that.

It is true that the Eleventh Amendment does not

apply to claims brought by one state against another
before this Court. See Maryland, 451 U.S. at 745 n.21.
But Texas’s Bill of Complaint raises the same con-
cerns of federalism and state sovereignty that typi-
cally insulates state officials from federal claims
premised on violations of state law. These concerns
similarly counsel against this Court exercising juris-
diction.

The discretionary factors do not

support jurisdiction.
This Court has imposed its own “prudential and
equitable limitations” on its exercise of original juris-
diction. California v. Texas, 457 U.S. 164, 168 (1982).
In determining whether it should exercise its discre-
tion to hear a case within its original jurisdiction, the
 22

Court has considered a variety of factors, although

two have explicitly been consulted:

(1) “the nature of the interest of the complain-

ing State, focusing on the seriousness and dig-
nity of the claim.” Mississippi v. Louisiana,
506 U.S. 73, 77 (1992) (citations omitted); and

(2) “the availability of an alternative forum in

which the issue tendered can be resolved.” Id.
at 77.

Both factors support declining jurisdiction.

First, the “seriousness and dignity of the claim,”

Mississippi, 506 U.S. at 77, are wanting. While Texas
casts its claims as being of the utmost significance, the
unanswered question is what Michigan has done to
injure Texas. Texas asserts that Michigan and the
other States failed to administer their elections in ac-
cordance with their own state laws. But there is no
allegation or argument that a single vote in Texas was
changed as a result of any event in Michigan or in the
other States.

As a result, it is not plain what interest Texas has

in the conduct of elections in other states—other than,
perhaps, as a premise to invoke this Court’s original
jurisdiction.

Moreover, the claims raised by Texas, and their

factual predicates, have been raised against Michigan
officials—and rejected by the lower federal courts.
(See King, 2020 WL 7134198 at *3–13; MiAppx 60–
74a, Costantino Order.) The claims raised here do not
justify Texas’s intrusion into the internal election
 23

operations of Michigan, seeking effective nullification

of 5.5 million votes.

The impossibly short time framework Texas re-

quests for a determination highlights the ill fit. Typi-
cally, resolution of an original-jurisdiction case is no
quick task. See, e.g., Arizona v. California, 373 U.S.
546, 551 (1963) (subsequent procedural history omit-
ted) (the Special Master conducted a two-year trial
concerning a battle over water rights of the Colorado
River and its tributaries, involving 340 witnesses and
25,000 pages of transcripts). The “rampant lawless-
ness” (Compl. ¶ 7), alleged by Texas is quite a factual
predicate to prove.

Texas effectively asks this Court to exercise super-

intending control over our country’s single national
election. This is not the proper process by which to re-
solve these claims.

Second, “alternative forums” exist in spades, and

have been employed by numerous entities challenging
the results of the election. Across the board, state and
federal courts have rejected the challenges as base-
less. This Court considers “the essential quality of the
right asserted—but we must also inquire whether re-
course to [original] jurisdiction . . . is necessary for the
State’s protection.” Washington v. Gen. Motors Corp.,
406 U.S. 109, 113 (1972) (citation omitted). This is
borne out by Paragraphs 7 and 91 of the Complaint,
which show that litigants have already unsuccessfully
challenged Michigan’s elections, and to no avail—as
recently as yesterday in Michigan’s highest court, re-
fusing to order an audit of the election.
 24

The doctrine of laches bars review of the

bill of complaint.
The defense of laches is rooted in the principle
that equity does not aid those who slumber on their
rights. See U.S. v. Clintwood Elkhorn Min. Co., 553
U.S. 1, 9 (2008) (“A constitutional claim can become
time-barred just as any other claim can.”). Courts ap-
ply laches in election cases. See Detroit Unity Fund v.
Whitmer, 819 F. App’x 421, 422 (6th Cir. 2020). Cf.
Benisek v. Lamone, 138 S. Ct. 1942, 1944 (2018) (“[A]
party requesting a preliminary injunction must gen-
erally show reasonable diligence. That is as true in
election law cases as elsewhere.”).

An action may be barred by laches if: (1) the plain-

tiff delayed unreasonably in asserting their rights and
(2) the defendant is prejudiced by this delay. Brown-
Graves Co. v. Central States, Southeast and Southwest
Areas Pension Fund, 206 F.3d 680, 684 (6th Cir. 2000).
Laches applies in this case for both reasons.

Texas unreasonably delayed, filing here over a

month after the general election and months after the
Michigan Secretary of State took any action to mail
absent voter ballot applications to voters. Claims that
either event violated the rights of Texas could and
should have been raised sooner than on the eve of 3
U.S.C. § 5’s “safe harbor” deadline.

The counting of votes in Michigan was completed

by its 83 boards of county canvassers on November 17,
and by the Board of State Canvassers on November
23. See Mich. Comp. Laws §§ 168.822(1), 168.841,
168.842(2), 168.845. Yet Texas waited an additional
two weeks before bringing this action. Further, the
 25

Michigan Secretary of State’s mailing of absent voter

ballot applications occurred months prior to the elec-
tion, yet Texas waited until after results were certi-
fied.

“[L]ast-minute injunctions changing election pro-

cedures are strongly disfavored.” Serv. Employees Int’l
Union Local 1 v. Husted, 698 F.3d 341, 345 (6th Cir.
2012) (citing Purcell v. Gonzalez, 549 U.S. 1, 4–5
(2006) (“Court orders affecting elections . . . can them-
selves result in voter confusion . . . As an election
draws closer, that risk will increase.”)).

This Court recently reaffirmed that principle in

Republican Nat’l Comm. v. Democratic Nat’l Comm.,
206 L.Ed.2d 452, 454 (2020), staying portions of an in-
junction modifying process for mailing ballots on the
eve of a primary election. Texas’s claims for injunctive
relief based on election fraud are not just last-mi-
nute—they are after the clock has gonged the twelfth
hour. While Plaintiffs delayed, the ballots were cast,
the votes were counted, and the results were certified.
The rationale for interposing the doctrine of laches is
at its peak. See Soules v. Kauaians for Nukolii Cam-
paign Committee, 849 F.2d 1176, 1180 (9th Cir. 1988)
(laches applies in post-election suits since “parties
who could raise a claim [could] lay by and gamble
upon receiving a favorable decision of the electorate
and then, upon losing, seek to undo the ballot results
in a court action”).

The State of Michigan has been prejudiced by

Texas’s delay. The Michigan Board of State Canvass-
ers certified the election results on November 23, and
certificates of election have now been issued for all
candidates. Michigan’s slate of electors was
 26

transmitted by the Governor to the U.S. Archivist the

same day. Further, the federal safe harbor transpired
on December 8, and presidential electors are due to
convene in less than one week—on December 14.
Mich. Comp. Laws § 168.47; 3 U.S.C. § 7. Michigan
cannot reasonably be expected to fully respond to the
Texas’s naked claims of fraud—let alone obtain the
services of necessary experts to controvert the unu-
sual statistical claims—in sufficient time to fully liti-
gate and disprove these unsupported allegations be-
fore December 14, a situation owing solely to Texas’s
own unexcused failure to act promptly to advance its
claims. The election in Michigan is over.

II. The bill of complaint should be dismissed

because Petitioner fails to state a claim upon
which relief may be granted as to any of the
alleged constitutional violations.
Besides, Texas’s claims are meritless. Not only
does Texas lack standing, but the gravamen of the
claims is predicated on factual assertions that have
been universally rejected by federal courts in Michi-
gan and by its state courts. This Court should reject
the motion to file a bill of complaint here.

The Electors Clause claim fails as a

matter of law.

Texas lacks standing to challenge

Michigan’s election results.
To begin, Texas lacks standing to bring claims un-
der the Electors Clauses. The elements of Article III
standing require a plaintiff to have (1) suffered an
 27

injury-in-fact, (2) that is fairly traceable to the chal-

lenged conduct of the defendant, and (3) that is likely
to be redressed by a favorable judicial decision. Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).

To plead an injury-in-fact, the party invoking fed-

eral jurisdiction must establish the “invasion of a le-
gally protected interest”; that the injury is both “con-
crete and particularized”; and that the injury is “ac-
tual or imminent, not conjectural or hypothetical.” Id.
at 560. The second sub-element requires that the in-
jury “affect the plaintiff in a personal and individual
way.” Id. at n.1. Allegations of “possible” future injury
simply are not enough. Id. at 560 (quoting Whitmore
v. Arkansas, 495 U.S. 149, 158 (1990)).

This Court has held that federal courts are not

venues for plaintiffs to assert a bare right “to have the
Government act in accordance with law.” Allen v.
Wright, 468 U.S. 737, 754 (1984), abrogated on other
grounds by Lexmark Int’l, Inc. v. Static Control Com-
ponents, Inc., 572 U.S. 118, 126–27 (2014). When the
alleged injury is undifferentiated and common to all
members of the public, courts routinely dismiss such
cases as “generalized grievances” that cannot support
standing. United States v. Richardson, 418 U.S. 166,
173–75 (1974).

In Count I, Texas claims that the Electors Clause

grants it a right to have Michigan conduct its elections
in conformity with Michigan state law. But the only
injury Texas has alleged is that the Electors Clause
has not been followed. This is no more than an undif-
ferentiated, generalized grievance about the conduct
of government. See Lance v. Coffman, 549 U.S. 437,
 28

442 (2007). Texas fails to establish an injury-in-fact

and thus standing to bring its Electors Clause claims.

The analysis of the Third Circuit in recently re-

jecting the standing of private plaintiffs to sue for al-
leged injuries attributable to a state government’s vi-
olations of the Elections Clause is instructive here.
See Bognet v. Sec’y Pennsylvania, 980 F.3d 336 (3d
Cir. 2020). In that case, the Third Circuit held that
because the Elections Clause and Electors Clause
have “considerable similarity,” the same logic applies
to alleged violations of the Electors Clause. Id. at 349.
The Third Circuit relied on Lance, 549 U.S. at 442, in
which this Court held that the plaintiffs lacked Article
III standing because the claimed harm was only to
their interest, and the interest of every citizen, in
proper application of the Elections Clause. The same
is true here. In fact, Texas has even less of an interest
in how Michigan runs its elections than would a citi-
zen of Michigan.

Further, as the Third Circuit observed in Bognet,

because the Elections Clause grants to “the Legisla-
ture” of “each State” the right to prescribe the “times,
places, and manner” of holding elections, any claims
under that Clause belong to the state legislature.
Bognet, 980 F.3d at 349. Similarly, the Electors
Clause vests the right to direct the manner in which
Electors are appointed. U.S. Const. art. II, § 1, cl. 2.
So, claims brought under the Electors Clause likewise
belong to that State’s legislature.

The State of Texas has no role in, or connection to,

Michigan’s legislature or Michigan’s elections. Accord-
ingly, it lacks standing to raise claims on behalf of the
Michigan legislature under the Electors Clause.
 29

Michigan has not violated the

Electors Clause.
Even assuming Texas had standing, the claim
based upon the Electors Clauses fails. The “Electors
Clause” of the Constitution states: “Each State shall
appoint, in such Manner as the Legislature thereof
may direct, a Number of Electors ....” U.S. Const. art.
II, § 1, cl. 2. Count I contends that, because the Mich-
igan Legislature has established laws for the admin-
istration of elections, including presidential elections,
Michigan violated the Electors Clause by “conscious
and express actions by State or local election officials
to nullify or ignore requirements of election statutes.”
(Bill of Complaint, ¶131.) Texas’s theory would consti-
tutionalize any claimed violation of state election
law—no matter how minor, fleeting, or inconsequen-
tial—any time there was a presidential election.

If adopted by this Court, Texas’s argument would

dramatically expand this Court’s oversight of state
elections. Not surprisingly, Texas offers no support for
such an expansive reading of the Electors Clause, and
indeed, neither this Court nor any other federal court
appears to have adopted this invasive and unjustified
approach. To the contrary, as discussed in greater de-
tail below, addressing Texas’s equal protection claim,
such federal court management of state elections has
been rejected by other courts.

In Bush v. Palm Beach County Canvassing Bd.,

531 U.S. 70, 76 (2000), this Court held that state leg-
islatures enacting laws governing the selection of
presidential electors are acting under a grant of au-
thority under Article II, § 1, cl. 2 of the U.S. Constitu-
tion. This Court has also held that the power to define
 30

the method of selecting presidential electors is exclu-

sive to the state legislature, McPherson v. Blacker,
146 U.S. 1, 27 (1892), and cannot be “taken or modi-
fied” even by the state constitutions, Bush v. Gore, 531
U.S. 98, 112–13 (2000) (C.J. Rehnquist, concurring).
From this modest premise, Texas contends that any
violation of the Michigan Election Law—even by local
officials—is tantamount to a modification of the Leg-
islature’s enactments. But neither Bush nor McPher-
son holds as much.

The most basic problem with Texas’s argument, of

course, is that Michigan has not violated its election
law. Ordinarily, public officials are presumed to have
“properly discharged their official duties.” Bracy v.
Gramley, 520 U.S. 899, 909 (1997). Texas has failed to
offer any actual evidence rebutting that presumption.
Texas fails to demonstrate how Michigan officials vio-
lated Michigan Election Law. Absent from Texas’s
complaint is any reference to any act or decision by
any state official that supposedly “violates” state law,
let alone the Electors Clause.

The closest allegation relates to the Michigan Sec-

retary of State’s mailing of absent voter ballot appli-
cations. Again, this act was found by Michigan state
courts to be consistent with the Secretary’s authority
under state law. Texas rests its claims on general al-
legations that unidentified “local election officials”
failed to follow laws providing for poll watchers and
inspectors. It neglects to offer any details on where,
how, and when such violations occurred.

In Bush v. Gore, Justice Rehnquist observed that

federal courts’ review of state court decisions affecting
presidential electors under Article II was “still
 31

deferential.” 531 U.S. at 114 (“there are of course ar-

eas in which the Constitution requires this Court to
undertake an independent, if still deferential, analy-
sis of state law”). Here, no state court has taken any
action or made any finding of a violation of state law.
Rather than deferring to Michigan courts on the inter-
pretation of its own laws, Texas ignores it, and then
invites this Court to do the same.

The Michigan election was held in accordance

with state law. The election in Michigan was held on
November 3, 2020. Canvass of the votes at the pre-
cinct level began immediately after the polls closed,
Mich. Comp. Laws § 168.801; the boards of county
canvassers met on the Thursday immediately follow-
ing the election to commence the canvass of the coun-
ties’ returns of votes; and the county canvass was com-
pleted by the 14th day after an election, which is No-
vember 17 this year, Mich. Comp. Laws §§ 168.821,
168.822. Michigan law was followed.

Pursuant to Mich. Comp. Laws § 168.842(1), the

Board of State Canvassers met on the twentieth day
after the election to certify the results—this cycle, it
was November 23. This meeting was both widely re-
ported and streamed live over the internet. No presi-
dential candidate subsequently requested a recount
as provided under state law. Mich. Comp. Laws
§ 168.879(1)(c).

Under Mich. Comp. Laws § 168.46, “[a]s soon as

practicable after the state board of canvassers has”
certified the results the Governor must certify the list
of presidential electors to the U.S. Secretary of the
Senate. See also 3 U.S.C. § 6. This, too, has already
been done.
 32

Lastly, Michigan law provides, under Mich. Comp.

Laws § 168.47, that the presidential electors “shall
convene” in the State’s capitol “on the first Monday
after the second Wednesday in December following
their election,” which is December 14 for this election
cycle. Mich. Comp. Laws § 168.47; 3 U.S.C. § 7.

Texas’s requested relief would imperil Michigan’s

ability to comply with this statutory deadline. As of
today, less than one week remains before the electors
must, by state law, convene. And Texas’s requested
relief—an order directing the Michigan legislature to
appoint new electors or no electors at all—would itself
violate the Electors Clause because such electors
would not have been appointed in the manner pro-
vided by state law.

Texas has failed to show that Michigan failed to

follow its own state election law, or that the Electors
Clause was violated. Thus, it is not likely to succeed
on the merits of this claim.

The Equal Protection Clause claim fails

as a matter of law.
“Equal protection of the laws” means “[h]aving
once granted the right to vote on equal terms, the
State may not, by later arbitrary and disparate treat-
ment, value one person’s vote over that of another.”
Bush, 531 U.S. at 104–05. Voting rights can be imper-
missibly burdened “by a debasement or dilution of the
weight of a citizen’s vote just as effectively as by
wholly prohibiting the free exercise of the franchise.”
Id. (quoting Reynolds v. Sims, 377 U.S. 533 (1964)).
“Our Constitution leaves no room for classification of
people in a way that unnecessarily abridges this right
 33

[to vote].” Reynolds, 377 U.S. at 559 (quoting Wesberry

v. Sanders, 376 U.S. 1, 17–18 (1964)).

Here, no group has been given preference or ad-

vantage. Texas fails to identify by name a single Mich-
igan voter who voted when they should not have—let
alone anything resembling widespread election fraud.
Similarly, Texas has not identified any election work-
ers who supposedly engaged in misconduct or malfea-
sance. Upon information and belief, none of the affi-
ants or witnesses suggested by Texas (largely from
other federal cases) have submitted any complaints of
election fraud to a Michigan law enforcement agency.

Moreover, there has been no valuation of any per-

son’s—or group of persons’—votes as being more val-
uable than that of others. There has been no disparate
treatment, and so nothing to violate “one-person, one-
vote jurisprudence.” Bush, 531 U.S. at 107. While
Texas appears to believe that some poll challengers
were treated inappropriately, even if true, that has no
bearing on the validity or integrity of any votes. The
penalty for interfering with a poll challenger is to pun-
ish the person who violated the law—not to punish
voters by invalidating their votes for reasons over
which they had no control. See Mich. Comp. Laws
§ 168.733(4).

Texas’s minimal allegations in Count II leave

much guesswork. The final paragraph of Count II,
however, argues that—by virtue of the President and
Vice-President being elected nationally—an equal
protection violation in one state may “adversely affect
and diminish the weight of votes cast in States that
lawfully abide by the election structure set forth in the
 34

Constitution.” (Bill of Complaint, ¶139.) There is no

support for this proposition.

Putting aside that there has been no violation of

Michigan law, this argument makes no sense. Under
the Electors Clause—on which it bases Count I—
Texas is entitled to only a number of electors equal to
the whole number of its senators and representatives
in Congress. U.S. Const. art. II, § 1, cl. 2. Nothing that
happens in Michigan would add or remove a single
electoral vote for Texas, and Texas has no entitlement
to any of Michigan’s electoral votes. It is not a pie.

As explained by the Third Circuit in Bognet—in

rejecting a similar “vote-dilution” claim brought by
state voters, this “is not how the Equal Protection
Clause works.” Bognet, 890 F.3d at 355 (emphasis
added). Similarly, the Eighth Circuit has held that,
“[t]he Constitution is not an election fraud statute.”
Minn. Voters All. v. Ritchie, 720 F.3d 1029, 1031 (8th
Cir. 2013). Although Texas sees the Constitution that
way, its claim finds no support in law.

Texas also fails to establish that the alleged injury

of “vote dilution” can be redressed by a favorable de-
termination by this Court. Texas asks this Court to
set aside the results of Michigan’s election and have
the state legislature make a new selection of electors.
But an order negating the votes of over 5.5 million
people would not reverse the alleged dilution of
Texas’s votes. As this Court has held, standing is not
“dispensed in gross: A plaintiff’s remedy must be tai-
lored to redress the particular plaintiff’s injury.” Gill
v. Whitford, 138 S. Ct. 1916, 1934 (2018). Texas’s al-
leged injury does not entitle it to the requested rem-
edy because the harm of having one’s vote diluted is
 35

not remedied by denying millions of others their right

to vote. Texas lacks standing on this claim.

The Due Process Clause claim fails as a

matter of law.
Count III is entirely comprised of five paragraphs,
in which Texas refers both to substantive and proce-
dural due process. First, Texas cites to a number of
Circuit Court decisions addressing election practices
found to violate substantive due process through “pa-
tent and fundamental unfairness.” (Complaint, ¶141.)
The next paragraph recites some of this Court’s deci-
sions on procedural due process. (Complaint, ¶142.)
Michigan is left to guess the nature of Texas’s claim.
In its best guess, Michigan assumes that Texas al-
leges a violation of substantive due process.

Texas alleges that the Defendant States “acted

unconstitutionally to lower [its] election standards—
including to allow invalid ballots to be counted and
valid ballots not to be counted—with the express in-
tent to favor their candidate for President and to alter
the outcome of the 2020 election.” (Complaint, ¶143.)
It is unclear what Texas means by the reference to the
State of Michigan having a favored candidate for Pres-
ident. But Texas goes on to allege that its earlier-al-
leged violations of Michigan Election Law constitute
intentional violations by state election officials and
their designees. (Complaint, ¶144.) Texas offers no
further elucidation of its due process claim.

This Court, however, has not recognized the right

to vote as a right qualifying for substantive due pro-
cess protection. See, e.g., San Antonio Indep. Sch.
Dist. v. Rodriguez, 411 U.S. 1, 35, n.78 (1973). Instead,
 36

this Court has held that “[w]here a particular Amend-

ment provides an explicit source of constitutional pro-
tection against a particular sort of government behav-
ior, that Amendment, not the more generalized notion
of ‘substantive due process,’ must be the guide for an-
alyzing these claims.” Albright v. Oliver, 510 U.S. 266,
273 (1994). Vote-dilution claims are typically ana-
lyzed under the Equal Protection Clause. For the rea-
sons stated in the argument above, there is no viola-
tion of the Equal Protection Clause. Consequently,
there is also no violation of substantive due process.

III. Texas fails to satisfy the requirements for

injunctive relief.
A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits and
suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and
that an injunction is in the public interest. Winter v.
NRDC, 555 U.S. 7, 20 (2010). Texas does not meet the
injunction factors.

Texas has no likelihood of succeeding

on the merits of its claims.
As discussed above, each of Texas’s three Counts
suffer from insurmountable factual and legal deficien-
cies. Indeed, these claims have already been rejected
by multiple courts based upon the same factual and
legal failings.
 37

Texas will suffer no irreparable harm

absent an injunction.
Texas dedicates a single paragraph to discussion
of its claim of irreparable harm, which centers on two
arguments: (1) Texas would be “denied representa-
tion” in the presidency and in the Senate, and (2) that
would permanently sow distrust in federal elections.
Neither argument supports an “irreparable harm” to
Texas.

This Court requires plaintiffs seeking preliminary

relief to demonstrate that irreparable injury is “likely
in the absence of an injunction.” Los Angeles v. Lyons,
461 U.S. 95, 103 (1983). This claim fails for three rea-
sons.

First, because Texas has not shown there was any

violation of Michigan Election Law, its claim of harm
is hypothetical and abstract. Second, because Texas
cannot demonstrate a likelihood of success, it also can-
not show that harm is likely through the violation of
any constitutional right. Third, Texas fails to explain
how setting aside election results and disenfranchis-
ing the majority of the electorate in the states would
work to stem “distrust in federal elections.”

Michigan will suffer critical harm if

the requested injunction is issued.
Preventing Michigan’s electors from voting in the
Electoral College would irreparably harm Michigan.
Michigan courts have long recognized that the will of
the majority should not be defeated as a result of er-
rors by election officials. See Gracey v. Grosse Pointe
Farms Clerk, 452 N.W.2d 471, 478 (Mich. 1989). Texas
 38

fails to explain why it would be less harmful to inval-

idate the votes of an entire state than to address indi-
vidual claims of wrongdoing according to established
state law.

The public interest will be harmed if

the requested injunction is issued.
This Court has held that it is contrary to the pub-
lic interest for courts to interfere in election laws in
the run-up to an election. See, e.g., North Carolina v.
League of Women Voters of N. Carolina, 574 U.S. 927
(2014) (granting stay to prevent interference with
election procedures roughly one month before elec-
tion).

If the Court issues the injunction Texas requests,

it will upend the statutory process for the selection of
presidential electors. Moreover, it will disenfranchise
millions of Michigan voters in favor of the preferences
of a handful of people who appear to be disappointed
with the official results. The same is true for the other
States named in this complaint. The State of Michigan
agrees with Georgia, Pennsylvania, and Wisconsin in
their efforts to safeguard their sovereignty and to re-
buff the action by one state that attempts to under-
mine the authority of their respective state election
laws. The public interest weighs in favor of judicial re-
straint.
 39

CONCLUSION
For the reasons set forth above, this Court should
deny Texas’s motion for leave to file a bill of complaint
against the name states and should deny Texas’s mo-
tion for a preliminary injunction.

Respectfully submitted,

Dana Nessel
Michigan Attorney General

Fadwa A. Hammoud
Solicitor General
Counsel of Record

Heather S. Meingast
Erik A. Grill
Assistant Attorneys
General
Civil Litigation, Employ-
ment & Elections Division

Attorneys for Defendant

State of Michigan
Dated: DECEMBER 2020