President Donald Trump on Wednesday latched on to a longshot Texas lawsuit seeking to overturn a presidential election that handed the White House to Joe Biden.
Legal experts say Texas Attorney General Ken Paxton’s effort to contest election results of four key battleground states is all but certain to fail. But it has drawn support from the Republican attorneys general of 17 other states.
As the president’s legal team loses case after improbable case in federal district and appellate courts, the Texas lawsuit offers a major advantage: It goes straight to the top. Under a special legal avenue unique to states, Paxton filed the case directly with the U.S. Supreme Court, a body Trump has suggested could deliver him the victory that voters did not.
The Texas lawsuit takes issue with changes to election procedures in four battleground states: Georgia, Pennsylvania, Michigan and Wisconsin. Paxton argues those changes were unlawful and call into question Biden’s victories in those states. He is asking the high court to block the critical battlegrounds from participating in the Electoral College.
Though the Supreme Court has a six-member conservative majority, including three justices appointed by Trump himself, it has so far shown no interest in siding with him in the election cases his campaign has lobbed. On Tuesday, it decisively rejected Pennsylvania Republicans’ effort to overturn Biden’s victory there in a one-sentence order with no dissents.
Legal experts and court watchers expect a similar outcome in the Texas case. The court has asked for a response from the four battleground states Texas is suing, setting a Thursday deadline, but has given no indication about how it will decide the matter.
“This is the Hail Mary with time running out the clock kind of play here,” said David Coale, an appellate attorney in Dallas. “This is really the last little window to sort of sneak in there and try to get a court involved.”
States have a special legal ability to take cases directly to the Supreme Court, though such cases are rare, and more typically involve boundary disputes like water rights. If the high court accepts Texas’ argument that it can sue the four battlegrounds in this case, Coale said, “then any state can sue any other state about just about anything.”
Even if the court gets past tricky procedural issues, Texas’ case faces an uphill battle.
Officials in the battleground states have roundly rejected Paxton’s argument, calling it “false,” “irresponsible,” “a publicity stunt,” “genuinely embarrassing,” “beyond reckless” and “beneath the dignity of the office of attorney general.”
They also point out that many of the claims Paxton makes about election irregularities in their states have already been litigated and roundly rejected. Experts, state election officials and U.S. Attorney General Bill Barr have all said there is no evidence of voter fraud on a scale that could have affected the outcome of the election.
“Texas alleges that there are 80,000 forged signatures on absentee ballots in Georgia, but they don’t bring forward a single person who this happened to. That’s because it didn’t happen,” said Jordan Fuchs, Georgia’s deputy secretary of state.
See here for the background, and please put aside any concerns you may have for Ken Paxton’s dignity. He sure isn’t concerned about it.
Honestly, the best way to deal with this kind of pure bullshit is through Twitter.
I could be wrong, but I suspect a lot of these Republican states would’ve been been a lot more reluctant to sign on to these kinds of legal arguments — which would expose them to tons of litigation over their own laws — if they thought it had any chance of success.
— Brad Heath (@bradheath) 2:38 PM – 09 December 2020
California, New York, and Massachusetts should immediately sue Texas for changing its election rules mid-stream to allow for expanded absentee voting, thereby violating their equal protection rights. (Note: This assumes the remedy for horseshit is more horseshit.)
— Chris Odell (@__Chris_Odell__) 2:59 AM – 09 December 2020
For more responses from people who are smarter and way more honest than Ken Paxton, Texas Lawyer collected a bunch more responses, a sample of which is here:
>> Raffi Melkonian, appellate lawyer at Wright, Close & Barger: “The new Paxton lawsuit is not worth a lot of your time, but I mean, it doesn’t make any sense and is bad and has no chance of success at all. Just want to be clear on that.” [Twitter]
>> Jonathan Adler, Case Western Reserve University law professor: “Here, Texas is not only asking the Supreme Court to hear the case, it is also asking for expedited consideration and extraordinary emergency relief, in the form of injunctions barring the defendant states from relying upon the election results to appoint electors and authorizing ‘pursuant to the Court’s remedial authority, the Defendant States to conduct a special election to appoint presidential electors.’ In effect, the suit is asking the U.S. Supreme Court to supervise the Presidential election in the four defendant states.” [Reason.com]
>> J. Scott Key, Georgia appellate attorney and Mercer University law professor: “This pleading is our book club’s next selection. Over wine, we will discuss whether the text is a coded love letter subtle to a jealous suitor with pardon power.” [Twitter]
>> U.S. Sen. Ted Cruz, R-Texas: “Petitioners’ legal team has asked me whether I would be willing to argue the case before #SCOTUS, if the Court grants certiorari. I have agreed, and told them that, if the Court takes the appeal, I will stand ready to present the oral argument.” [Twitter]
>> John Q. Barrett, law professor at St. John’s University School of Law: “Kudos to Sen. Cruz for giving the Court another major reason, just in case it needed any more, to deny cert.” [Twitter]
>> Philadelphia election lawyer Adam Bonin, who has represented the Democratic Party in recent election litigation in Pennsylvania: “It is embarrassing to see argument like this from a state attorney general to the Supreme Court of the United States.” [Twitter]
>> Andrew Fleischman, appellate attorney, Ross & Pines, Atlanta: “Gonna go ahead and sue the Supreme Court to enjoin them from taking up this Texas challenge. That way they’ll all have to recuse. When the Supreme court rejects the suit after dismissing my petition and ordering sanctions, I’ll go on Fox News and say they were scared of me.” [Twitter] “Ok the absolute trolliest thing Michigan could do right now is move to recuse Paxton because his desire for a pardon is a conflict of interest. We’re not even really doing law any more so why not?” [Twitter]
>> Eric Greenberg, Seyfarth Shaw: “Would the @Nate_Cohn @nytimes needle predicting a Biden win in GA at 3 am in the morning be sufficient evidence to combat the claim as to GA? Just kidding — but maybe not.” [Twitter]
>> Adam VanHo, Ohio attorney, former state assistant attorney general: “@KenPaxtonTX should be ashamed of himself for this frivolous filing. And if states get to sue other states over their treatment of voters, when will states like New York and Ohio sue southern states over their treatment of former felons’ voting rights.” [Twitter]
>> Pennsylvania Lt. Gov. John Fetterman: “Can the Texas AG *also* sue their Lieutenant Governor for the handsome reward of $2M he owes me for reporting voter fraud?” [Twitter]
>> Chris Geidner, The Justice Collaborative: “As others have noted, Texas Solicitor General Kyle Hawkins is not on the SCOTUS filing—despite him being the state’s lead SCOTUS lawyer. There is, however, a ‘special counsel’ noted.” [Twitter]
>>Joyce White Vance, former U.S. attorney for the Northern District of Alabama: “This lawsuit alleges defendant states took advantage of the pandemic to expand vote by mail. It’s the ultimate expression of Trump’s view the GOP can’t win … if all eligible Americans can vote. Tx AG, himself under criminal investigation, appears to be a fan of cheat to win.” [Twitter]
>>Jocelyn Benson, Michigan Secretary of State: “This lawsuit seems to suggest that the voters of Michigan messed with Texas. They didn’t. Case closed.” [Twitter]
SCOTUS requested responses from the four targeted states by this afternoon. Everyone with integrity believes the case will be summarily dismissed shortly thereafter. Stay tuned. The Chron, Daily Kos, the Current, Political Animal, and Slate have more.