The brief makes an argument not otherwise presented in the Texas election lawsuit now on the SCOTUS docket. The essence of it is:
- Article IV, Section 4 of the Constitution states “The United States shall guarantee to every state in this union a republican form of government.”
- A republican form of government requires that election results be determined solely on the basis of legal votes.
- The defendant states have counted illegal votes in the elections they administered.
- Therefore, the defendant states have violated the Constitution’s Guarantee Clause.
The brief goes on to explore the question of whether SCOTUS should intervene (violating the principle of federalism under which the states normally would be left to solve their own problems). It asserts, however, that the defendant states acted like a cabal or oligarchy (not like republics), thwarting the guarantee. Hence, SCOTUS intervention is both appropriate and necessary. Moreover, SCOTUS intervention is consistent with the original intent of the Framers.
I find the amicus brief compelling. There are probably many ways SCOTUS can reject the substantive argument, but federalism in my view shouldn’t be one of them. State sovereignty isn’t perfect or complete, and should not extend to “do whatever we want” governance.