In a filing this past week with the Supreme Court in Texas v. Pennsylvania, Ohio’s Attorney General, David Yost, and its Solicitor General, Ben Flowers, lent support to Texas’s fanciful claim that Pennsylvania’s, Wisconsin’s, Michigan’s and Georgia’s presidential votes favoring Joe Biden were somehow “tainted” by the illegal “rewriting” of election laws by State courts and local election officials. These “alterations,” Yost charged, cause “serious post-election problems,” so much so that the unprecedented use of the Supreme Court’s original jurisdiction was warranted.

While not agreeing that the Supreme Court should simply hand the election to Trump, or order blue State legislatures to appoint red electors for Donald Trump, Yost did not even completely dispel the possibility that some other form of meaningful relief might still be available to Texas and Trump.

Instead of stating the obvious, that is, that Texas’s (and Trump’s) unsubstantiated complaints about the presidential election were crazy and dangerous, Yost and Flowers joined Trump’s chorus by complaining about “hastily implemented changes” to rules “immediately preceding or during the election.”  Given all this, Yost laments, “it is not unreasonable to wonder—and many millions of Americans do—whether those hastily implemented changes exposed the election systems to vulnerabilities.”  Nor is it “unreasonable to object on fairness grounds—as many millions of Americans do—to changing the voting rules when the election is impending and the changes’ impact on the results can be predicted.”

Unfortunately for Trump (and Yost’s position in support), the Supreme Court quickly, summarily and unanimously rejected Texas’s effort to subvert the election by dismissing the complaint.  No State can have a “cognizable interest in the manner in which another State conducts its elections,” the Court explained.  Even the two Justices (Alito and Thomas) who would have accepted the complaint’s filing (for certain future dismissal) plainly stated that they “would not grant other relief.” The Supreme Court thus unanimously slammed the door on Texas, Trump and Ohio. The case, as virtually everyone in America’s constitutional community knew, was dead on arrival.

Now, let us be clear about Yost’s musings to the high Court. While ostensibly cast in neutral language —  Ohio “cannot support Texas’s plea for relief,” Yost asserted — the reality is that Yost’s argument was nothing less than a bone for Donald Trump and his rabid base.

Any law student who has studied Constitutional Law, after all, would have understood that Texas’s effort to directly invoke the Supreme Court’s so-called “original” jurisdiction in order to upset the results of a presidential election was doomed to failure.

First off, the Supreme Court’s ability to hear original cases (those that do not start in lower courts) is extremely limited and rarely used.  Although technically it allows disputes between States to come directly to the High Court, as a practical matter this happens only with disputes over States’ boundaries and water rights. Every time the Mississippi floods the Supreme Court will hear one or two original cases.

In contrast, the High Court’s original jurisdiction has never been used to challenge an election.  Texas’s and Trump’s attempt here was a pathetic gambit contrived to avoid the fate of dozens of challenges in Pennsylvania, Arizona, Wisconsin, Michigan, and Georgia that Trump had already lost in lower courts.  It was an unprecedented, ridiculous attempt on Trump’s behalf to have “his” Supreme Court Justices hand him the election.  

Even if a direct filing in the Supreme Court were permitted, Texas and Trump presented absolutely no evidence of actual fraud or wrongdoing that might justify any form of relief.  Neither did Yost.  The most Texas could do was speculate that if voters in Pennsylvania, Wisconsin, Michigan, and Georgia had exhibited the same preferences they expressed in 2016, Trump would have won.  No evidence and no proof,  just unsupported head-scratching assumptions. 

Yost should be ashamed for trading principle for partisan support. Far from casting shade on the election to appease Trump, Yost should have praised America’s election machinery. He should have honored the patriots who administered it.  That he did not should concern all Ohioans.

Professor Mark R. Brown is the Newton D. Baker/Baker and Hostetler Chair at Capital University Law School in Columbus, Ohio. 

Suggested Citation: Mark R. Brown, Texas and Trump: The Case of Ohio’s Attorney General David Yost, JURIST – Academic Commentary, December 18, 2020, https://www.jurist.org/commentary/2020/12/mark-brown-yost-trump/.

This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org.