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.
___________________
On Motion for Leave to File Bill of Complaint

GEORGIA’S OPPOSITION TO TEXAS’S MOTION

FOR LEAVE TO FILE BILL OF COMPLAINT AND
ITS MOTION FOR PRELIMINARY RELIEF

Christopher M. Carr
Attorney General of Georgia
Andrew A. Pinson
Solicitor General of Georgia
Counsel of Record
Ross W. Bergethon
Deputy Solicitor General
Drew F. Waldbeser
Assistant Solicitor General
Office of the Attorney
General
40 Capitol Square SW
Atlanta, Georgia 30334
(404) 458-3409
[email protected]

Counsel for the State of Georgia*

Brian D. Boone William H. Jordan
Brandon C.E. Springer Bryan W. Lutz
J. Stephen Tagert* Lee A. Deneen
ALSTON & BIRD LLP William J. Repko
101 S. Tryon Street #4000 ALSTON & BIRD LLP
Charlotte, NC 28280 1201 West Peachtree Street
(704) 444-1000 Atlanta, Georgia 30309
[email protected] (404) 881-7000
*Admitted to practice in New [email protected]
York only.

Joseph H. Hunt Erik S. Jaffe

ALSTON & BIRD LLP James A. Heilpern*
950 F Street, NW Joshua J. Prince
Washington, D.C. 20004 SCHAERR|JAFFE LLP
Telephone: 202-239-3300 1717 K Street NW, Suite
[email protected] 900 Washington, DC 20006
(202) 787-1060
[email protected]
*Admitted to practice in
Virginia.

Counsel for the State of Georgia

 i

TABLE OF CONTENTS

INTRODUCTION .........................................................1
STATEMENT ................................................................2
ARGUMENT .................................................................7
CONCLUSION ............................................................31
 ii

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Alabama v. Arizona,
291 U.S. 286 (1934)............................... 27, 29, 30

Alfred L. Snapp & Son v. Puerto Rico,

458 U.S. 592 (1982)........................................... 16

Arbaugh v. Y & H Corp.,

546 U.S. 500 (2006)............................................. 7

Arizona v. New Mexico,

425 U.S. 794 (1976)....................................... 8, 11

Baker v. Carr,
369 U.S. 186 (1962)..................................... 18, 20

Benisek v. Lamone,
138 S. Ct. 1942 (2018)....................................... 22

Bush v. Gore,
531 U.S. 98 (2000) (per curiam) ........1, 10, 23, 30

Bush v. Palm Beach Cnty.,

531 U.S. 70 (2000)....................................... 19, 26

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013)........................................... 14

Coyle v. Smith,
221 U.S. 559 (1911)........................................... 29
 iii

Democratic Party of Georgia v.

Raffensperger,
No. 1-19-cv-5028-WMR (N.D. Ga.) ................... 12

Escanaba Co. v. City of Chicago,

107 U.S. 678 (1883)........................................... 28

Georgia v. Pennsylvania R. Co.,

324 U.S. 439 (1945)........................................... 17

Gill v. Whitford,
138 S. Ct. 1916 (2018)....................................... 14

Gov’t of Manitoba v. Bernhardt,

923 F.3d 173 (D.C. Cir. 2019) ..................... 15, 16

Hollingsworth v. Perry,
570 U.S. 693 (2013)........................................... 17

Kansas v. Colorado,
206 U.S. 46 (1907)........................................... 8, 9

Kowalski v. Tesmer,
543 U.S. 125 (2004)........................................... 17

Lance v. Coffman,
549 U.S. 437 (2007)..................................... 14, 15

Louisiana v. Texas,
176 U.S. 1 (1900)................................................. 9

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992)............................................. 7

Maryland v. Louisiana,
451 U.S. 725 (1981)............................................. 9
 iv

Massachusetts v. Missouri,
308 U.S. 1 (1939)............................................... 11

McPherson v. Blacker,
146 U.S. 1 (1892)......................................... 10, 18

Mississippi v. Louisiana,
506 U.S. 73 (1992)................................... 6, 7, 8, 9

Missouri v. Illinois,
180 U.S. 208 (1901)............................................. 9

Nken v. Holder,
556 U.S. 418 (2009)........................................... 28

Nw. Austin Mun. Util. Dist. No. One v.

Holder,
557 U.S. 193 (2009)........................................... 20

Pearson et al. v. Kemp et al.,

No. 1:20-cv-04809-TCB (N.D. Ga.) ............... 6, 12

Pennsylvania v. New Jersey,

426 U.S. 660 (1976) (per curiam) ........... 8, 10, 16

Rucho v. Common Cause,

139 S. Ct. 2484 (2019)........................... 19, 20, 22

South Carolina v. North Carolina,

558 U.S. 256 (2010). .......................................... 13

Spokeo, Inc. v. Robins,

136 S. Ct. 1540 (2016)................................. 13, 17

Texas v. New Mexico,

462 U.S. 554 (1983)............................................. 9
 v

Warth v. Seldin,
422 U.S. 490 (1975)........................................... 17

Winter v. NRDC, Inc.,

555 U.S. 7 (2008)................................7, 22, 28, 29

Wood v. Raffensperger,
No. 1:20-cv-04651-SDG, 2020 WL
6817513 ......................................................... 6, 12

Wood v. Raffensperger,
No. 1:20-cv-04651-SDG (N.D. Ga.) ..................... 6

Federal Statutes

3 U.S.C. § 2 ............................................................. 31

3 U.S.C. § 5 ...................................................... passim

3 U.S.C. § 7 ............................................................. 31

3 U.S.C. § 15 ........................................................... 30

State Statutes

Georgia Administrative Procedure Act,

O.C.G.A. §§ 50-13-1 through 50-13-44 ............. 12

O.C.G.A. 21-2-31(2) .................................................. 3

O.C.G.A. §§ 21-2-10 ................................................ 23

O.C.G.A. § 21-2-31...................................... 23, 24, 25

O.C.G.A. §§ 21-2-132 ................................................ 3

O.C.G.A. § 21-2-286(a)(1)(C) .................................. 24

 vi

O.C.G.A. § 21-2-386.................................................. 3

O.C.G.A. § 21-2-386(a)(1)(B) .................................. 24

O.C.G.A. § 21-2-386(a)(1)(C) .................................. 24

O.C.G.A. § 21-2-498.................................................. 5

O.C.G.A. § 21-2-523................................................ 26

Rules

Rule 183-1-14-.13 ................................................... 25

State Rule 183-1-14-0.9-.15 ............................ passim

State Rule 183-1-14-0.9-.15 and (ii) ...................... 12

Constitutional Provisions

Eleventh Amendment ............................................ 17

U.S. Const., 12th Amendment .............................. 27

U.S. Const. Amendment XII .................................. 30

U.S. Const. Article I, § 4, cl.1................................. 18

U.S. Const. Article II, § 1, cl. 2 ....................... passim

U.S. Const. Article II, § 1, cl. 4 .............................. 18

Other Authorities

Boland v. Raffensperger,
No. 2020-CV-343018 (Fulton Cnty. Sup.
Ct.) ................................................................. 6, 12
 vii

Reg. Sess. (Ga. 2019) ................................................ 4

Trump et al. v. Raffensperger et al.,

No. 2020-CV-343255 (Fulton Cnty. Sup.
Ct.) ........................................................... 6, 12, 13
 1

INTRODUCTION
“None are more conscious of the vital limits on
judicial authority than are the members of this Court,
and none stand more in admiration of the
Constitution’s design to leave the selection of the
President to the people, through their legislatures, and
to the political sphere.” Bush v. Gore, 531 U.S. 98, 111
(2000) (per curiam). That is as it should be, given that
the Constitution vests each State with the power to
“appoint, in such manner as the Legislature thereof
may direct, a number of electors.” U.S. Const. art. II, §
1, cl. 2. And that reality requires that Texas’s motions
challenging the results of the presidential election in
Georgia be denied.
Contrary to Texas’s argument, Georgia has
exercised its powers under the Electors Clause.
Georgia’s legislature enacted laws governing elections
and election disputes, and the State and its officers
have implemented and followed those laws. To ensure
the accuracy of the results of that process, it has
completed three total counts of the vote for its
presidential electors, including a historic 100 percent
manual recount—all in accordance with state law. It
has, consistent with its authority under 3 U.S.C. § 5,
authorized its courts to resolve election disputes. See
Bush, 531 U.S. at 112 (Rehnquist, C.J., concurring,
with Scalia, J. and Thomas, J.) (“In most cases, comity
and respect for federalism compel [this Court] to defer
to the decisions of state courts on issues of state law”—
a practice that “reflects [the Court’s] understanding
that the decisions of state courts are definitive
pronouncements of the will of the States as
sovereigns.”). It has defended its election process in
 2

multiple lawsuits in the State. And the disputes that

challengers have filed in the State have all resolved in
Georgia’s favor.
Texas nevertheless asks this Court to transfer
Georgia’s electoral powers to the federal judiciary.
Respect for federalism and the constitutional design
prohibits that transfer of power, but this Court should
never even reach that issue because the Court’s rules
governing its original jurisdiction, constitutional
limitations on standing, and principles of federalism all
preclude the exercise of this Court’s original
jurisdiction over Texas’s belated action.
This Court should deny Texas’s motions.
STATEMENT
1. This election cycle, Georgia did what the
Constitution empowered it to do: it implemented
processes for the election, administered the election in
the face of logistical challenges brought on by COVID-
19, and confirmed and certified the election results—
again and again and again.
Yet Texas has sued Georgia anyway, asserting
claims based on essentially four factual allegations—
(1) Georgia’s State Election Board adopted State Rule
183-1-14-0.9-.15, which allowed county election
officials before November 3 to begin processing (but not
tabulating) the record-setting number of absentee
ballots cast during the pandemic (Compl. ¶ 67);
(2) Georgia’s Secretary of State, represented by the
Georgia Attorney General’s office, entered into a
settlement agreement providing that (i) the Secretary
of State would send a communication to the counties
that recommended best practices for reviewing ballots,
 3

which included a panel of three registrars or clerks

(instead of only one) to review absentee ballots with
questionable signatures, although only one member
makes the final decision with agreement from at least
one other member, (ii) state election officials should
consider providing county officials with certain
guidance and training materials (id. ¶¶ 70–71); and
(3) Georgiawould enforce its voluntarily promulgated
State Election Board regulation requiring prompt
notification of absentee ballot rejection, but also
providing voters with telephonic notice of any
deficiencies (id. ¶ 71).
Those measures complied with Georgia law. Take
the State Election Board’s processing rule first. Under
Georgia law, the State Elections Board has authority
“[t]o formulate, adopt, and promulgate such rules and
regulations . . . as will be conducive to the fair, legal,
and orderly conduct of primaries and elections” so long
as those rules are “consistent with law.” O.C.G.A. 21-2-
31(2). The State Elections Board exercised that
statutory authority by adopting State Rule 183-1-14-
0.9-.15. Indeed, a different statute—O.C.G.A. § 21-2-
386—allows the State Elections Board to preliminarily
review absentee ballots before Election Day, and
expressly provides the county election superintendent
with “discretion” to tabulate ballots prior to the close of
the polls even in regular times. Id. at § 21-2-
386(a)(1)(B), (a)(3) (allowing the registrar, “[u]pon
receipt of each ballot” to begin steps that include
certifying signatures, and that the “county election
superintendent may . . . choose[] to open the inner
envelopes and begin tabulating such ballots prior to the
close of the polls on the day of the primary, election, or
runoff”). In taking these actions, the State Elections
 4

Board followed State law and enabled registrars to

process efficiently and accurately a record-setting
number of absentee ballots.
As for the signature-verification guidance, neither
communications with counties to recommend best
practices on how to analyze absentee-ballot signatures,
nor alerting a voter of ballot deficiencies by telephone
and in writing presents any conflict with State law.
Texas cites no Georgia law suggesting otherwise. Nor
does Texas cite any Georgia law suggesting that an
election official cannot even consider sending guidance
and training materials to county officials.
Texas suggests that those lawful implementation
measures, and not the Georgia Legislature’s actions,
resulted in election officials’ rejecting absentee ballots
at a “seventeen times” lower rate in 2020 than in 2016.
Compl. ¶ 75. But there is no basis for Texas’s
speculation about the reasons for the alleged
differences in rejection rates. Rejection rates for
signatures on absentee ballots remained largely
unchanged. See Wood v. Raffensperger, No. 1:20-cv-
04651-SDG, 2020 WL 6817513, at *10 (N.D. Ga. Nov.
20, 2020). But overall rejection rates were influenced
by many factors, including significant legislative
action. In 2019, the Georgia Legislature eliminated
certain information that voters had been required to
provide on absentee ballots during the 2016 election
cycle; for instance, because of the 2019 legislative
changes, in 2020, voters casting mail-in ballots were
not required to write their date of birth and address on
the ballot before submitting it. H.B. 316, 236 Gen.
Assemb., Reg. Sess. (Ga. 2019). That same law adopted
a cure process, giving absentee voters the opportunity
to cure deficient or missing signatures on absentee
 5

ballots. That process did not exist in Georgia law prior

to 2019. Those changes by the Georgia Legislature in
2019—combined with the 2020 election’s record
turnout and extensive public and private educational
efforts regarding voting procedures—explain the
allegedly lower rejection rates better than Texas’s fact-
less speculation about the (lawful) steps taken to
process absentee ballots.
2. Following the November 3 General Election,
Georgia took additional steps to ensure the security,
reliability, and integrity of its electoral process. First,
in accordance with O.C.G.A. § 21-2-498, Georgia
completed a risk-limiting audit. To satisfy the
statutory audit requirements, Secretary of State Brad
Raffensperger could have chosen a sample size of
ballots for any race, but he selected the presidential
election, recognizing its significance. The audit
resulted in a manual count of nearly 5 million ballots
cast—a process that lasted the better part of a week
and required the State to deploy immense human and
financial resources. Ultimately, the audit confirmed
the initial election results, and Secretary
Raffensperger certified the results on November 20,
2020.
That was not all. Responding to the Trump
Campaign’s request, Georgia undertook a machine
tabulation recount of the nearly 5 million ballots.
Again, the recount confirmed the initial election
results. So Secretary Raffensperger recertified the
state’s results again on December 7, 2020.
3. Against that backdrop, Texas alleges that
Georgia violated the Electors Clause (but unlike with
other States, does not plead facts even suggesting
 6

violations of the Equal Protection Clause or Due

Process Clause). Texas asks this Court to override
Georgia’s election results, enjoin its electors from
participating in the election, and command Georgia’s
Legislature to either re-appoint new electors or forgo
presenting electors at all and let the House and Senate
select the President and Vice President.
Texas’s claims are no different than the multiple
cases pressed in state and federal courts in Georgia
over the past weeks. Since the November election,
there have been at least six Georgia cases alleging that
state election officials violated the law by acting in
accordance with the State’s settlement agreement or by
adopting State Rule 183-1-14-0.9-.15. See, e.g., Wood v.
Raffensperger, No. 1:20-cv-04651-SDG (N.D. Ga.);
Pearson et al. v. Kemp et al., No. 1:20-cv-04809-TCB
(N.D. Ga.); Wood v. Raffensperger et al., No. 2020-CV-
342959 (Fulton Cnty. Sup. Ct.); Boland v.
Raffensperger, No. 2020-CV-343018 (Fulton Cnty. Sup.
Ct.); Della Polla v. Raffensperger, No. 20-1-7490 (Cobb
Cnty. Sup. Ct); Trump et al. v. Raffensperger et al., No.
2020-CV-343255 (Fulton Cnty. Sup. Ct.). And none of
that litigation has gone anywhere. The Eleventh
Circuit, the Northern District of Georgia, and the
Superior Courts of Fulton County and Cobb County,
Georgia have rejected all the claims except for in one
case, which was filed just this week and is thus still
winding through Georgia’s courts just as the Georgia
Legislature envisioned. In the one remaining case,
Trump et al. v. Raffensperger et al., No. 2020-CV-
343255, which was not approved for filing until
December 7, 2020, due to filing errors made by the
plaintiffs, it is the plaintiffs who have withdrawn their
 7

emergency motion for relief as of December 8, 2020,

slowing the ultimate resolution of that action.

Despite those rulings, Texas now asserts virtually

identical claims hoping that this Court will accept the
arguments that Georgia courts have rejected. This
Court should reject Texas’s claims—both because the
Court lacks jurisdiction and because Texas has not
shown a likelihood of success in any event.
ARGUMENT
I. Texas lacks standing.
Texas lacks Article III standing to pursue its claims.
Texas alleges two types of injuries—a direct injury to
the State and a supposed injury to its Electors, whom
Texas seeks to represent in a parens patriae capacity.
Neither is cognizable.
A. Texas argues that it has suffered a direct injury
because “the States have a distinct interest in who is
elected Vice President and thus who can cast the tie-
breaking vote in the Senate.” Mot. for TRO 14–15
(emphasis in original); see also id. at 15 (arguing that
a “Plaintiff State suffers an Article III injury when
another State violates federal law to affect the outcome
of a presidential election”). Under governing precedent,
that is not an injury in fact. A State—like any
plaintiff—has standing only if it alleges an injury that
is actual or imminent, concrete, and particularized. See
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016)
(citing Lujan, 504 U.S. at 560); see also id. (injury in
fact is the “[f]irst and foremost” of the standing
elements) (quoting Steel Co. v. Citizens for Better Env’t,
523 U.S. 83, 103 (1998)). But Texas has no cognizable
interest specific to Texas in how the Vice President
 8

votes. Texas’s interest is in its own representation in

the Senate; Georgia has not impaired that interest.
Texas still has two Senators, and those Senators may
represent Texas’s interests however they choose. Even
by its own logic, Texas has suffered no injury.
In any event, Texas’s speculation that the Vice
President may one day cast a tie-breaking vote is not a
cognizable injury. That speculation hinges on many
events that may not materialize, including how
unidentified Senators may vote concerning
unidentified future legislation; whether those Senators
will vote exclusively along party lines; the outcome of
Georgia’s Senate race in January 2021; and how the
Vice President may vote in a hypothetical tie-breaking
situation involving future legislation. Indeed, certain
Vice Presidents—Mr. Biden, for example—never cast a
tie-breaking vote during their tenure. Texas’s alleged
injury is not the type of imminent, concrete, or
particularized injury that Article III demands. See
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410 (2013)
(a “threatened injury must be certainly impending to
constitute injury in fact” (quoting Whitmore v.
Arkansas, 495 U.S. 149, 158 (1990))); id. (standing
theory that “relies on a highly attenuated chain of
possibilities[] does not satisfy the requirement that
threatened injury must be certainly impending”).
Texas’s alleged injury is also not cognizable because
it is a generalized grievance—the kind of injury “that
is ‘plainly undifferentiated and common to all members
of the public.’” Lance v. Coffman, 549 U.S. 437, 440– 41
(2007) (quoting United States v. Richardson, 418 U.S.
166, 176–77 (1974)); id. (The only injury plaintiffs
allege is that the law—specifically the Elections
Clause—has not been followed. This injury is precisely
 9

the kind of undifferentiated, generalized grievance

about the conduct of government that we have refused
to countenance in the past.”); see also Gill v. Whitford,
138 S. Ct. 1916, 1923 (2018) (the alleged injury must
be “distinct from a ‘generally available grievance about
government’” (quoting Lance, 549 U.S. at 439)).
The injuries that Texas alleges on behalf of its
citizens are injuries that would be common to not only
every citizen of Texas, but also every citizen of every
state. Cf. Lance, 549 U.S. at 440 (“To have standing . .
. a plaintiff must have more than a general interest
common to all members of the public.” (quoting Ex
parte Levitt, 302 U.S. 633, 633 (1962))). And in all
events, by Texas’s logic any State would have standing
to pursue the alleged claims because every State
purportedly “suffers an Article III injury when another
State violates federal law to affect the outcome of a
presidential election” (Mot. for TRO 15). So Texas’s
injury is specific neither to its citizens nor to Texas as
a State. An injury unique to no one is not an injury in
fact.
Texas cites no case supporting its assertion that it
has suffered an injury in fact. Texas cites
Massachusetts v. Envtl. Prot. Agency for the proposition
that “states seeking to protect their sovereign interests
are ‘entitled to special solicitude in our standing
analysis’” (Mot. for TRO 15 (citing 549 U.S. 497, 520
(2007)), but Texas strips that language of its context.
The Court there explained that Massachusetts was
entitled to “special solicitude” in the standing analysis
because a State has a quasi-sovereign interest in
“preserv[ing] its sovereign territory” and because
Congress had afforded “a concomitant procedural right
to challenge the rejection of its rulemaking petition as
 10

arbitrary and capricious.” Massachusetts, 549 U.S. at

519–20; see also Gov’t of Manitoba v. Bernhardt, 923
F.3d 173, 182 (D.C. Cir. 2019) (explaining context of the
Court’s reasoning). Neither thing is true here. In any
case, Massachusetts involved a State’s loss of coastal
property from rising sea levels, which is nothing like
Texas’s alleged injury (a speculative tie-breaking vote
by the Vice President). Texas has not alleged a direct
injury in fact.
B. Nor does Texas have standing to raise claims for
its electors in a parens patriae capacity (cf. Mot. for
TRO 15). A State may sue parens patriae only if it
proves that it has Article III standing (see, e.g.,
Bernhardt, 923 F.3d at 178), which Texas hasn’t done.
But even if it had, Texas would lack parens patriae
standing because that concept applies only when a
State seeks to vindicate the interests of more than a
discrete and identifiable subset of its citizens (most
often in the health and welfare contexts). See, e.g.,
Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S.
592, 607 (1982) (“[M]ore must be alleged than injury to
an identifiable group of individual residents . . .”);
Pennsylvania v. New Jersey, 426 U.S. at 665 (a State
may not sue parens patriae when it is “merely litigating
as a volunteer the personal claims of its citizens”).
Here, Texas purports to represent the interests of only
thirty-eight people (its Electors).
But Texas’s problems run even deeper. This Court
has explained that “[o]ne helpful indication in
determining whether an alleged injury to the health
and welfare of its citizens suffices to give the State
standing to sue as parens patriae is whether the injury
is one that the State, if it could, would likely attempt
to address through its sovereign lawmaking powers.”
 11

Alfred L. Snapp & Son, 458 U.S. at 607; see also

Bernhardt, 923 F.3d at 178 (same). That is not the case
here. Under our federalist system, Texas could never
“address through its sovereign lawmaking powers” how
another State elects its Electors. Texas lacks parens
patriae standing.
C. Texas also lacks standing because it asserts the
rights of third parties. A plaintiff generally “cannot rest
his claim to relief on the legal rights or interests of
third parties” unless the plaintiff establishes (1) a
“close” relationship with the third party and (2) a
“hindrance” preventing the third party from asserting
her own rights. Kowalski v. Tesmer, 543 U.S. 125, 129–
30 (2004). Otherwise, the plaintiff fails to present a
“particularized” injury. See Spokeo, 136 S. Ct. at 1548;
see also Warth v. Seldin, 422 U.S. 490, 502 (1975)
(“Petitioners must allege and show that they
personally have been injured, not that injury has been
suffered by other, unidentified members of the class to
which they belong and which they purport to
represent.”).
In substance, Texas tries to assert claims that are
at least three steps removed from the arguably proper
plaintiff: Texas seeks to assert its citizens’ rights to
representation, which seek to assert Georgia’s citizens’
voting rights, which really seek to assert the Georgia
Legislature’s rights to have its plenary authority over
voting procedures followed.1 This Court has held that

1 The Eleventh Amendment bars Texas citizens from bringing

such claims against Georgia in federal court, so Texas cannot
circumvent that bar when asserting such individual rights in a
parens patria capacity. See Georgia v. Pennsylvania R. Co., 324
U.S. 439, 465 (1945) (“By reason of the Eleventh Amendment the
 12

derivative or attenuated injuries of that sort are not

enough for standing. See, e.g., Hollingsworth v. Perry,
570 U.S. 693, 708 (2013) (“It is, however, a
‘fundamental restriction on our authority’ that ‘[i]n the
ordinary course, a litigant must assert his or her own
legal rights and interests, and cannot rest a claim to
relief on the legal rights or interests of third parties.’”
(quoting Powers v. Ohio, 499 U.S. 400, 410 (1991)).
II. Texas raises nonjusticiable political
questions.
This Court should also deny Texas’s motion because
it raises nonjusticiable political questions.
Texas seeks to alter how Georgia appoints it
electors. Yet there is a “textually demonstrable
constitutional commitment” to Georgia’s political
branches for how the State appoints electors. Baker v.
Carr, 369 U.S. 186, 217 (1962). Texas itself touts the
“plenary” authority (Mot. for TRO 27 (quoting Bush,
531 U.S. at 104 (per curiam))), of “[e]ach state” to
appoint electors “in such Manner as the Legislature
thereof may direct.” U.S. Const. art. II, §1, cl. 2
(emphasis added)); see also McPherson, 146 U.S. at 35
(“[F]rom the formation of the government until now the
practical construction of the clause has conceded
plenary power to the state legislatures in the matter of
the appointment of electors.”). And Article II limits
Congress’s authority to directing the time, not the

judicial power of the United States does not extend to suits

brought against a state by a citizen of another state.”).
 13

manner, of “chusing” such Electors. U.S. Const. art. II,

§1, cl. 4.2
Because the “direct grant of authority made under”
the Electors Clause empowers the Georgia Legislature,
Bush v. Palm Beach Cty. Canvassing Bd., 531 U.S. 70,
76 (2000), the means for determining whether
executive agents of the legislature are acting in
accordance with legislative direction is likewise within
the Georgia Legislature’s power.
Although this Court has held that “there is a role
for the [federal] courts” with respect to protecting
individual rights of a state’s own citizens in “two
areas—one-person, one-vote and racial
gerrymandering”—the Court’s cases addressing those
two areas arose from a “State’s drawing of
congressional districts” (Rucho v. Common Cause, 139
S. Ct. 2484, 2495–96 (2019))—which is not the context
here. Beyond those issues, at “no point” has there been
any “suggestion that the federal courts had a role to
play” either in setting the time, place, and manner of
elections, nor “was there any indication that the
Framers had ever heard of courts doing such a thing.”
Id. at 2496.
And this Court recently applied the political
question doctrine when it rejected expanding the
federal courts’ role in states’ administering of elections
even in that context, concluding that “partisan
gerrymandering claims present political questions

2
Insofar as the provisions of Article I’s Elections Clause is read in
pari materia with Article II’s Electors Clause, supervisory
authority over the “Manner” of state elections of federal
officeholders is given exclusively to Congress, not to federal courts.
U.S. Const. Art. I, § 4, cl.1.
 14

beyond the reach of the federal courts,” because

“[f]ederal judges have no license to reallocate political
power between the two major political parties, with no
plausible grant of authority in the Constitution, and no
legal standards to limit and direct their decisions.” Id.
at 2506–07. The Court reasoned that “hold[ing] that
legislators cannot take partisan interests into account
when drawing district lines would essentially
countermand the Framers’ decision to entrust
districting to political entities.” Id. at 2497.
If that were not enough, there are no judicially
discernable or manageable standards for adjudicating
Texas’s claims. See Baker, 369 U.S. at 226. Federal
courts may act only when a challenge raises a “claim[]
of legal right, resolvable according to legal principles.”
Rucho, 139 S. Ct. at 2494. To that end, only those
questions “historically viewed as capable of resolution
through the judicial process” are appropriate for
judicial review. Id. (quotation omitted). Otherwise, it is
a “political question[] that must find [its] resolution
elsewhere.” Id.
That is true here: The novel and far-reaching claims
that Texas asserts, and the breathtaking remedies it
seeks, are impossible to ground in legal principles and
unmanageable. This Court has never allowed one state
to co-opt the legislative authority of another state, and
there are no limiting or manageable principles to cabin
that kind of overreach. If this Court were to entertain
Texas’s attack on Georgia’s sovereignty, it would
trample the “historic tradition that all the States enjoy
equal sovereignty,” Nw. Austin Mun. Util. Dist. No.
One v. Holder, 557 U.S. 193, 203 (2009) (quoting United
States v. Louisiana, 363 U.S. 1, 16 (1960)).
 15

Consider, for example, the questions that Texas’s

novel legal theory leaves unresolved. When can this
Court hear a case employing Texas’s theory of
standing? Can state attorneys general controlled by
opposing political parties mount any challenge to a
federal election that could affect the balance of power,
either through the presidency or through a change in
either house of Congress? How many votes must be in
question for a state to mount a challenge? What state
election laws can another state challenge and what
laws are off limits? What is the deadline for this Court
to resolve those sorts of challenges? Can this Court
bind Congress should it decide to accept Electors
challenged by a disgruntled state? Is Congress a
necessary party to the suit? Those are only a few of the
questions that this case presents. Texas does not
attempt to answer any of them.
At bottom, the questions presented in this case
involve (1) powers granted exclusively to state
legislatures and (2) powers granted to state
legislatures that are subject to congressional, not
judicial, oversight. As with political gerrymandering,
exercising judicial authority to override state
prerogatives to set their own procedures for resolving
internal election disputes would significantly expand
the judicial power, one ungrounded in law and lacking
any limiting or manageable principle. This Court’s
cautionary words in Rucho are at least as important
here as they were in the political gerrymandering
context:
The expansion of judicial authority
[sought by the plaintiffs] would not be into
just any area of controversy, but into one
of the most intensely partisan aspects of
 16

American political life. That intervention

would be unlimited in scope and
duration—it would recur over and over
again around the country with each new
[Presidential election]. Consideration of
the impact of today’s ruling on democratic
principles cannot ignore the effect of the
unelected and politically unaccountable
branch of the Federal Government
assuming such an extraordinary and
unprecedented role.
139 S. Ct. at 2507.
For those reasons, this Court’s resolving of
Texas’s proposed original action would violate
the Court’s long-standing political question
doctrine.
III. Texas’s claims do not meet the high
standard for an original action against
another state.
This Court has exclusive, but discretionary,
jurisdiction over “controversies between States that, if
arising among independent nations, ‘would be settled
by treaty or by force.’” South Carolina v. North
Carolina, 558 U.S. 256, 267 (2010) (quoting
Kansas v. Colorado, 206 U.S. 46, 98 (1907). The Court
has reserved its original jurisdiction for those
exceptional circumstances involving State actions that
“directly” violate another State’s rights. Pennsylvania
v. New Jersey, 426 U.S. at 663 (per curiam). And even
then, the availability of another forum in which the
issues may be resolved counsels against permitting an
original action. Arizona v. New Mexico, 425 U.S. 794,
796–97 (1976).
 17

Here, Texas presses a generalized grievance that

does not involve the sort of direct state-against-state
“controversy” required for original jurisdiction. And in
any case, there is another forum in which parties who
(unlike Texas) have standing can challenge Georgia’s
compliance with its own election laws: Georgia’s own
courts.
A. The claims presented do not involve
a controversy between states.
In deciding whether a case involves the requisite
controversy between States, this Court has required an
actual—not theoretical or abstract—conflict. Kansas v.
Colorado, 206 U.S. at 97 (“[W]henever . . . the action of
one State reaches through the agency of natural laws
into the territory of another State, this court is called
upon to settle that dispute.” (emphasis added));
Louisiana v. Texas, 176 U.S. 1, 18 (1900) (“In the
absence of agreement [by compact] it may be that a
controversy might arise between two States for the
determination of which the original jurisdiction of this
court be invoked, but there must be a direct issue
between them . . . .”).
A canvass of this Court’s original-jurisdiction cases
confirms that direct controversy requirement. The
Court has exercised original jurisdiction only when
conflict between the States is concrete and
unmistakable, not a legal abstraction. Those cases
include disputes over things like territorial boundaries
or water rights (see, e.g., Kansas v. Colorado, 206 U.S.
at 98), pollution discharged into a neighboring State
(Missouri v. Illinois, 180 U.S. 208, 246–47 (1901)), a
violation of an interstate contract or compact (see Texas
v. New Mexico, 462 U.S. 554, 562 (1983)), or a tax
 18

“clearly intended” to reach across state lines to a

neighboring state’s consumers. See Maryland v.
Louisiana, 451 U.S. 725, 736 (1981); accord Mississippi
v. Louisiana, 506 U.S. 73, 77 (1992) (“The model case
for invocation of this Court’s original jurisdiction is a
dispute between States of such seriousness that it
would amount to casus belli if the States were fully
sovereign.” (quoting Texas v. New Mexico, 462 U.S. at
571 n.18))). All those cases share the feature that one
State’s actions allegedly injured another State in
concrete ways in that State.
On the flip side, there is no direct controversy when
a State complains about another State’s actions that
apply to that other State’s own citizenry or activities
within its own borders. See Louisiana v. Texas, 176
U.S. at 23 (finding no case of controversy ‘between a
State and citizens of another State’” when a Texas
health officer implemented a quarantine embargo on
incoming commerce from Louisiana to address yellow
fever); accord Pennsylvania v. New Jersey, 426 U.S. at
664 (“It has long been the rule that in order to engage
this Court’s original jurisdiction, a plaintiff State must
first demonstrate that the injury for which it seeks
redress was directly caused by the actions of another
State.”).
Texas’s motions do not present a controversy
between two States. There is no allegation that Georgia
targeted Texas with any of the actions that allegedly
violate the Electors Clause, the Equal Protection
Clause, or the Due Process Clause. Texas concedes, as
it must, that the Georgia Legislature has plenary
authority to decide how to conduct elections in Georgia.
Mot. for TRO 4; see also U.S. Const. art. II, § 1, cl. 2
(“Each State shall appoint, in such Manner as the
 19

Legislature thereof may direct, a Number of Electors . .

. .” (emphasis added)); Bush, 531 U.S. at 104 (“[T]he
state legislature’s power to select the manner for
appointing electors is plenary.”); McPherson v. Blacker,
146 U.S. 1, 27 (1892) (a State’s chosen manner of
delegating adjudication presidential election
controversies are the exclusive method of challenging).
Yet Texas bases its claims on allegations that Georgia’s
election process violated Georgia’s laws, thereby
depriving Georgia citizens of their constitutional right
to select electors as the Georgia Legislature deemed fit.
This Court has never exercised original jurisdiction
over such an attenuated “controversy.”
B. There are alternative forums where
those with standing can challenge
(and are challenging) Georgia’s
election processes.
Even if Texas had presented a direct controversy
between it and Georgia, principles of comity and
federalism counsel against the exercise of original
jurisdiction, especially given the availability of another
forum for those with standing to challenge Georgia’s
election processes. As this Court has explained,
In the exercise of our original jurisdiction
so as truly to fulfill the constitutional
purpose we not only must look to the
nature of the interest of the complaining
State—the essential quality of the right
asserted—but we must also inquire
whether recourse to that jurisdiction . . .
is necessary for the State’s protection. . . .
[T]he broad statement that a court having
jurisdiction must exercise it . . . is not
 20

universally true but has been qualified in

certain cases where the federal courts
may, in their discretion, properly
withhold the exercise of the jurisdiction
conferred upon them where there is no
want of another suitable forum.
Massachusetts v. Missouri, 308 U.S. 1, 18–19 (1939).
The alternative forum doesn’t need to be available to
the State seeking to invoke this Court’s original
jurisdiction. It is enough if the “issues tendered” in the
proposed original action may be litigated in another
forum. Arizona v. New Mexico, 425 U.S. at 797 (“[W]e
are persuaded that the pending state-court action
provides an appropriate forum in which the issues
tendered here may be litigated.” (emphasis in
original)).
Here, the availability of alternative fora could not
be more plain, for the issues that Texas raises are
already the subject of numerous lawsuits in Georgia.
At bottom, Texas’s claims rest on allegations that
Georgia election officials violated Georgia law by (i)
adopting Georgia Secretary of State Rule 183-1-14-0.9-
.15 and (ii) issuing guidance consistent with a
settlement agreement entered in Democratic Party of
Georgia v. Raffensperger, No. 1:19-cv-5028-WMR (N.D.
Ga.). But since the General Election on November 3,
several suits raising the same issues have made their
way through federal and state courts in Georgia, with
one still pending. See, e.g., Wood v. Raffensperger, No.
1:20-cv-04651-SDG, 2020 WL 6817513, at *10–11 (N.D.
Ga. Nov. 20, 2020) (holding that plaintiff failed to
demonstrate substantial likelihood of success on claim
that the Georgia Secretary of State violated state law
by acting in accordance with the settlement
 21

agreement), aff’d, No. 20-14418, 2020 WL 7094866

(11th Cir. Dec. 5, 2020); Compl., Pearson et al. v. Kemp
et al., No. 1:20-cv-04809-TCB (N.D. Ga. Nov. 25, 2020),
ECF No. 1 ¶¶ 59, 62 (claiming that Georgia election
officials violated state law by adopting Rule 183-1-14-
0.9-.15 and acting in accordance with the settlement
agreement); Order on State Defs.’ Mot. to Dismiss,
Boland v. Raffensperger, No. 2020-CV-343018 (Fulton
Cnty. Sup. Ct. Dec. 8, 2020) at 4 (dismissing plaintiffs’
challenge to the legality of the settlement agreement);
Compl., Trump et al. v. Raffensperger et al., No. 2020-
CV-343255 (Fulton Cnty. Sup. Ct. Dec. 4, 2020), ¶¶
142, 278 (similar allegations).3
In that regard, the issues presented in Texas’s
motion stand in contrast to issues uniquely sovereign
in nature—like territorial boundaries—that cannot
properly be raised by other parties in other forums. See,
e.g., South Carolina v. North Carolina, 558 U.S. at 259
(invoking original jurisdiction where South Carolina
sought equitable apportionment of the Catawba River).
That difference requires denial of Texas’s motions as to
Georgia.
IV. Texas has not shown that it is entitled to
preliminary injunctive relief.
Nor has Texas proved entitlement to its requested
preliminary relief.
As a threshold matter, “a party requesting a
preliminary injunction must generally show
3
In addition, Georgia’s Election Board adopted Rule 183-1-14-0.9-.15 under
the Georgia Administrative Procedure Act, O.C.G.A. §§ 50-13-1 through 50-
13-44. Georgia’s APA requires and the Election Board app appropriately
provided notice of the contemplated rule and an opportunity for public
comment.
 22

reasonable diligence.” Benisek v. Lamone, 138 S. Ct.

1942, 1944 (2018). Texas filed this motion over a month
after the 2020 presidential election and just one day
before the congressionally mandated “safe harbor” in
relation to the Electoral College. Demanding a rushed
exercise of extraordinary power due to time pressures
of its own making is not demonstrative of reasonable
diligence.
In any event, “[a] preliminary injunction is an
extraordinary remedy never awarded as of right.”
Winter, 555 U.S. at 24. To obtain a preliminary
injunction, a plaintiff “must establish [1] that he is
likely to succeed on the merits, [2] that he is likely to
suffer irreparable harm in the absence of preliminary
relief, [3] that the balance of equities tip in his favor,
and [4] that an injunction is in the public interest.” Id.
at 20. Texas has not established these required factors.
A. Texas has not shown a likelihood of
success on the merits.
Consistent with the Electors Clause, U.S. Const.,
art. II, § 1, cl. 2., the Georgia Legislature has directed
the “Manner” of appointing presidential Electors to be
through a statewide vote and has delegated authority
to the State Board of Elections to promulgate rules and
regulations to ensure that this happens. See O.C.G.A.
§§ 21-2-10; 21-2-31. The Legislature has given the
Election Board express authority to “promulgate rules
and regulations” to ensure “uniformity” among election
officials and a “fair, legal, and orderly” election.
O.C.G.A. § 21-2-31.
Texas challenges three of the Board’s regulations
implementing the election code as supposedly contrary
to state law—and thus seeks to supplant the
 23

Legislature’s chosen agents and means for resolving

election disputes with its own. This same alleged
conduct is the basis for all three of Texas’s claims.
Whatever the label, Texas’s claims violate the
principles of federalism and separation of powers, are
incompatible with Congress’s deference to and safe-
harbor for state-court mechanisms for resolving
presidential election disputes, and would do more
damage to legislative prerogatives than anything
alleged in the proposed Complaint.
1. As Bush v. Gore makes clear, if a court fails to
“defer to the [State’s] interpretations” as required, then
the court unconstitutionally “depart[s] from the
legislative scheme.” 531 U.S. at 120. That premise—
honoring the legislative scheme and its authority—
illustrates the difference between this case and Bush v.
Gore. Here, it is Texas that seeks to alter the
“legislative scheme” to deprive the state of its safe-
harbor protections and to change Georgia’s “statutorily
provided apportionment of responsibility.” Id. at 114.
2. The Georgia Legislature has delegated to the
State Election Board (which includes the Secretary of
State) the authority to promulgate rules concerning
election officers, the conducts of primaries and
elections, investigations concerning irregularities, and
to define standards of what constitutes a valid vote.
O.C.G.A. § 21-2-31. The Board exercised that
authority, promulgating the very rules that Texas now
complains about. O.C.G.A. § 21-2-386(a)(1)(B). That
statute establishes a floor, which the Compromise
Settlement Agreement does not lower. Other than
requiring the registrar or clerk to compare the
signature on the absentee ballot with a signature on
file, the statute does not require a single individual to
 24

have exclusive decision-making authority regarding

initial evaluation, preclude others from assisting in
that endeavor, or specify a particular procedure for
determining whether the signatures matched. Indeed,
the subsequent provision regarding when a ballot may
be rejected based on the signature is framed in the
passive voice, stating that “if the signature does not
appear to be valid . . . the registrar or clerk shall write
across the face of the envelope ‘Rejected,’ giving the
reason therefore.” O.C.G.A. § 21-2-386(a)(1)(C)
Recommending the further safeguard of having the
registrar or clerk consult with two co-workers before
invalidating a ballot was a reasonable measure to
obtain uniformity in the practices and proceedings of
election officers.
3. Likewise, the Code allows voters to “cure” certain
defects on an absentee ballot within three days of the
election. To facilitate that process, Georgia law
requires that the “board of registrars or absentee ballot
clerk shall promptly notify the elector of such of such
rejection” and “retain a copy” of such notification.
O.C.G.A. § 21-2-386(a)(1)(C). Once again, the
Settlement Agreement and implementing regulations
are entirely consistent with this provision. Contrary to
Texas’s argument, the Settlement calls for enforcement
of the State Election Board’s voluntarily passed rule
requiring prompt notification of rejection of absentee
ballots, including telephone notification where
possible. State Election Board Rule 183-1-14-.13. That
supplemental notification does not remotely conflict
with the statute and is a reasonable “rule” that ensures
“uniformity” and a “fair, legal, and orderly” election.
O.C.G.A. § 21-2-31.
 25

4. The same is true of the Board rule authorizing

county election superintendents to begin processing—
but not tabulating—absentee ballots three weeks
before the election. State Election Board Rule 183-1-14-
0.9-.15. That emergency rule addressed a potential
conflict in statutory directives brought about by the
unusual press of excess ballots in a time of pandemic-
related precautions, and which required Board
guidance to ensure a “uniformity” and a “fair, legal, and
orderly” election. O.C.G.A. § 21-2-31. Given the
tremendous surge in absentee ballots expected due to
COVID-19, there was a significant risk that the ballots
could not be processed quickly enough on election day
to meet other statutory requirements in a timely
manner. Accordingly, state election officials had to
choose which provisions took priority in the face of such
conflict. It was entirely within the scope of their
delegated authority to determine that it would be more
“fair, legal, and orderly” to permit early processing
(with strong safeguards for privacy and informational
security in place), rather than risk a backlog on election
day that would delay the count and endanger other
timing requirements.
5. Even if the Board’s Emergency pre-processing
rule deviated from the statute, it did not do so
significantly—and it caused no harm in any event.
When reconciling potentially conflicting requirements,
the Board is in the best position to choose which of the
Legislature’s commands take precedence. And its
emergency rule preserved all of the safeguards of the
statute regarding privacy, non-disclosure, notice, and
observers. In any case, the proposed Complaint does
not even allege how many ballots were in fact subject
to such pre-processing—county superintendents are
 26

not required to start early—so there is no allegation

that this violation impacted enough ballots to affect the
outcome.
6. In addition, Texas’s claims would draw this Court
into a sphere that Congress has itself reserved to the
States. The federal election code, 3 U.S.C. § 5, “creates
a ‘safe harbor’ for a State insofar as congressional
consideration of its electoral votes is concerned.” Palm
Beach Cty. Canvassing Bd., 531 U.S. at 77. That safe-
harbor provision does not impose affirmative duties on
state legislatures, but instead governs how Congress
and the courts must treat the results of qualifying state
procedures.
7. And enacting a state election law setting the
manner of choosing Electors is only one part of the
equation. The statute also provides that qualifying
matters include the “final determination of any
controversy or contest concerning the appointment of
all or any of the electors of such State, by judicial or
other methods or procedures.” 3 U.S.C. § 5. Georgia has
done precisely that, and its state courts are the venue
for resolving any such controversy of contest. O.C.G.A.
§ 21-2-523 (election disputes “shall be tried and
determined by the superior court of the county where
the defendant resides.”). Texas’s request that this
Court interpret Georgia’s election code turns Section
5’s assumption on its head.
8. Even setting aside these federalism and
separation-of-powers concerns, Texas has failed to
meet its pleading standard. When asking this Court to
exercise original jurisdiction, “[t]he burden upon the
plaintiff state fully and clearly to establish all essential
elements of its case is greater than that generally
 27

required to be borne by one seeking an injunction in a

suite between private parties. Alabama v. Arizona, 291
U.S. 286, 292 (1934) (citing Connecticut v.
Massachusetts, 282 U.S. 660, 669 (1931)). Instead, “[a]
state asking leave to sue another . . . must allege, in the
complaint offered for filing, facts that are clearly
sufficient to call for a decree in its favor.” Id. at 291.
Texas has not done so. For all the reasons stated above,
Texas has identified no injury flowing from the
regulations that underlie its claims.
B. Texas has not shown irreparable
harm.
When one state seeks an injunction against
another, “[l]eave will not be granted unless the
threatened injury is clearly shown to be of serious
magnitude and imminent.” Alabama v. Arizona, 291
U.S. at 292. Texas fails this high standard. The
appointment of Georgia Electors is not the final word
in choosing the president and vice president because
those electors must still vote and Congress must accept
those votes. U.S. Const., 12th amend. Insofar as the
safe-harbor provision of 3 U.S.C. § 5 would guarantee
acceptance of Georgia’s Electors, then this case is too
late, the injury is extant rather than imminent, and it
cannot be cured or forestalled by a preliminary
injunction.
In any event, the harms alleged by Texas
concerning the outcome of the Electoral College vote—
or the supposed harm to the “Republic” from loss of
confidence in the elections in general (Mot. for TRO
32)—are not the type of injuries supporting a
preliminary injunction. First, a plaintiff “must
establish that . . . he is likely to suffer irreparable harm
 28

in the absence of preliminary relief.” Winter, 555 U.S.

at 20 (emphasis added). Thus, harms to “the Republic”
are generalized harms that are not specific to Texas.
Otherwise, Texas could obtain a preliminary injunction
on behalf of a harm to the entire nation.
Second, the alleged harm specific to Texas is not
harm at all. Supposed dilution of Texas votes vis-à-vis
the votes in other states cannot be a cognizable harm
because it is baked into the Constitution. The Electoral
College guarantees votes to states based on the number
of their representatives and senators. See U.S. Const.,
art. II, § 1, cl. 2. Texas’s electoral total was not—and
could not be—diminished by the electoral vote in other
States. This means that Texans’ votes are always
diminished compared to smaller states. As for the
supposed denial of representation “in the presidency
and in the senate” (Mot. for TRO 32), Texas will still
have two Senators.
C. The equities and the public interest
favor Georgia.
Normally, the last two factors—“assessing the harm
to the opposing party and weighing the public
interest”—“merge when the Government is the
opposing party.” Nken v. Holder, 556 U.S. 418, 435
(2009). But this makes little sense when governments
of equal authority are on both sides of a preliminary
injunction request, as is the case here. See Escanaba
Co. v. City of Chicago, 107 U.S. 678, 689 (1883).
In balancing the equities, a court “must balance the
competing claims of injury and must consider the effect
on each party of the granting or withholding of the
requested relief.” Winter, 555 U.S. at 24 (quoting
Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542
 29

(1987)). The lack of genuine harm to Texas has been

noted above, but Georgia risks significant potential
harm—another State’s encroachment on Georgia’s
plenary authority to regulate elections in the State.
The Court’s granting this preliminary injunction would
create a precedent of allowing one State to reach into
the internal political affairs of another in a way that no
State has done before. The Equal Footing Doctrine
forbids one “state be[ing] placed upon a plane of
inequality with its sister states in the Union.” Coyle v.
Smith, 221 U.S. 559, 565 (1911). In short, the balance
of equities favors denial of a preliminary injunction.
So does the public interest. “In exercising their
sound discretion, courts of equity should pay particular
regard for the public consequences in employing the
extraordinary remedy of injunction.” Winter, 555 U.S.
at 24 (quoting Weinberger v. Romero-Barcelo, 456 U.S.
305, 312 (1982)). And the public consequences here
would be enormous. Texas worries about “sowing
distrust in federal elections” (Mot. for TRO 32), but
imagine the distrust and discouragement that would
bloom here if voters understood that their votes could
be nullified by a different state.
Courts must give “a due regard for the public
interest in orderly elections.” Benisek v. Lamone, 138
S. Ct. 1942, 1944 (2018). After-the-fact, out-of-state
suits seeking nullification are anything but orderly.
The public interest cuts in favor of keeping one State
out of another State’s election process.
****
Texas cannot satisfy any element of the four-part
preliminary-injunction test, much less the “greater”
 30

burden that it bears in seeking an injunction against a

sister state. Alabama, 291 U.S. at 292.
V. Texas is not entitled to the remedies that it
seeks.
Even if there were any merit to Texas’s claims, its
requested remedies are improper.
First, Texas may not obtain declaratory relief
because this Court “may not be called on to give
advisory opinions or to pronounce declaratory
judgments.” Alabama v. Arizona, 291 U.S. at 291
(collecting cases). Even if the Court construed the
request as a request for injunctive relief, Texas’s
request for a declaration that certain electoral college
votes “cannot be counted” is still a nonstarter because
none of the State Defendants participates in counting
such votes and the U.S. Congress is not a party. See
U.S. Const. amend. XII (electoral votes counted in U.S.
Congress); 3 U.S.C. § 15 (same).
Nor does Texas attempt to support its request to
enjoin the Defendants from using the election results
to appoint electors. Texas admits that “the state
legislature’s power to select the manner for appointing
electors is plenary.” Bush, 531 U.S. at 104. Texas does
not cite any statute that would allow this Court to
intrude on a power expressly reserved to the States. In
any case, Texas’s follow-up request that the Court
authorize a special election runs headlong into 3 U.S.C.
§ 5, whose “safe harbor” provision mandates that a
State’s own final determination on the appointment of
electors “shall be conclusive.”
Texas’s request that the Court direct the
appointment of new electors (or none at all) fares no
 31

better. Read together, the cited provisions authorize

the belated appointment of electors “as [a state
legislature] may direct,” so they augment rather than
diminish a State’s autonomy to determine its own
appointment processes. 3 U.S.C. § 2; see also U.S.
Const. art. II, § 1, cl. 2.
Likewise, Texas’s attempt to bar the Defendants
from meeting for electoral college purposes finds no
basis in 3 U.S.C. §§ 5 or 7. On the contrary, Section 7
provides that the State’s chosen electors “shall meet . .
. at such place . . . as the [state legislature] shall direct.”
3 U.S.C. § 7. There is no basis for Texas, in the guise of
protecting state legislative authority, to intrude into
those same legislative prerogatives.
CONCLUSION
The Court should deny Texas’s motion for leave to
file a bill of complaint and its motion for a temporary
restraining order. Alternatively, if the Court grants
Texas’s motion for leave, then it should dismiss Texas’s
claims.
 32

Respectfully submitted December 10, 2020.

/s/ Andrew A. Pinson

Christopher M. Carr
Attorney General of Georgia
Andrew A. Pinson
Solicitor General of Georgia
Counsel of Record
Ross W. Bergethon
Deputy Solicitor General
Drew F. Waldbeser
Assistant Solicitor General
Office of the Attorney General
40 Capitol Square SW
Atlanta, Georgia 30334
(404) 458-3409
[email protected]

Brian D. Boone William H. Jordan

Brandon C.E. Springer Bryan W. Lutz
J. Stephen Tagert* Lee A. Deneen
Alston & Bird LLP William J. Repko
101 S. Tryon Street #4000 Alston & Bird LLP
Charlotte, NC 28280 1201 West Peachtree Street
(704) 444-1000 Atlanta, Georgia 30309
[email protected] (404) 881-7000
*Admitted to practice in New [email protected]
York only.

Joseph H. Hunt Erik S. Jaffe

Alston & Bird LLP James A. Heilpern*
950 F Street, NW Joshua J. Prince
Washington, D.C. 20004 Schaerr|Jaffe LLP
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Telephone: 202-239-3300 1717 K Street NW, Suite

[email protected] 900 Washington, DC 20006
(202) 787-1060
[email protected]
*Admitted to practice in
Virginia.

Counsel for Defendant State of Georgia