Texas sued the wrong parties if it wants to stop presidential electors' votes from being counted

Texas v. Pennsylvania has a lot of problem as a lawsuit, not the least of which is Texas’s standing to bring a claim against what other states are doing.

But I wanted to focus on one remedial problem. Texas might (subject to many other caveats, of course—Professor Lisa Marshall Manheim highlights some of them) be able to seek relief against, say, the Commonwealth of Pennsylvania in the Supreme Court. But its real problem at this stage is the conduct of presidential electors. Those electors vote December 14 and send their votes to Congress.

Note some of the relief Texas seeks:

B. Declare that any electoral college votes cast by such presidential electors appointed in Defendant States Pennsylvania, Georgia, Michigan, and Wisconsin are in violation of the Electors Clause and the Fourteenth Amendment of the U.S. Constitution and cannot be counted.

…

F. Enjoin the Defendant States from certifying presidential electors or otherwise meeting [sic] for purposes of the electoral college pursuant to 3 U.S.C. § 5, 3 U.S.C. § 7, or applicable law pending further order of this Court.

Telling the States what to do is one thing. But what about Pennsylvania’s 20 presidential electors who meet Monday, December 14, to cast votes?

Asking the court to declare that "votes cast” by electors “cannot be counted” implicates two parties. First, it includes all presidential electors whose votes would be declared invalid. Those electors, however, are not named in the lawsuit. Second, it includes Congress, which is empowered under the Twelfth Amendment to “count[]” the votes of presidential electors. For the Court to instruct Congress not to count what is, in my judgment, a political question committed to Congress—and for the Court to do so without joining Congress as a party—is an inappropriate remedy.

It also seeks to enjoin states from “meeting for purposes of the electoral college,” but, I think, it’s poor drafting—it also is requesting, based on the context and the term “presidential electors” used just before “otherwise meeting” to prohibit the electors from meeting, as 3 U.S.C. § 7 authorizes them to do. Again, to enjoin the states is one thing, but there is no correlating opportunity to enjoin presidential electors (if that’s what Texas seeks).

While there’s plenty of commentary about this case out there (and I expect the Supreme Court to summarily dismiss the complaint in a matter of days, if not hours), I wanted to highlight this problem in the complaint. Essential parties—the presidential electors who vote December 14, and Congress as the one who decides which votes to count January 6—are not present. And, in my judgment, remedies targeting these entities would be even more significant than remedies seeking to enjoin state v. state activities.