As I wrote before, the Dem election strategy was to go ahead, break the law, and bet that the courts wouldn’t stop them.
It was a good bet. Democrat judges wouldn’t interfere, the Roberts type would be reluctant to second guess any decisions made under the pretext of the pandemic, and conservative judges are innately conservative, which means they’re reluctant to have the court intervene in the functioning of government. When courts want to take up a political issue, as they frequently did during the Trump administration, they use assorted process pretexts, and when they don’t, there’s always standing and relief.
This is where the Texas lawsuit comes in. Lawsuits representing the Trump campaign could be shoved back into state courts and left to die there and lawsuits representing a handful of individuals could be denied standing or relief in a national election. But the lawsuit by Texas is much bigger than that. Federal courts can’t tell Texas to file their lawsuit in state courts, it’s automatically a federal matter, and being able to represent 29 million people is pretty formidable.
That’s a long way from a sure thing.
Michigan AG Nessel, a partisan hack, responded to the Texas lawsuit by essentially saying it’s not worth her time. That’s been the general attitude among Democrats who are feeling pretty confident at the moment. And the Texas lawsuit does delve into somewhat uncharted waters. The essential question of whether some states can collude to fundamentally alter election results, while violating their own laws, and what the remedy is, is on the menu here.
Bypassing the legislatures however is also a constitutional violation. The question is whether courts will actually defend the constitution.
UPDATE: Supreme Court accepts Texas lawsuit