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We still have to talk about Paxton’s ridiculous and anti-democratic lawsuit

At least for one more day.

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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.

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 CruzR-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.

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13 Comments

  1. blank says:

    “This is the Hail Mary with time running out the clock kind of play here,” said David Coale, an appellate attorney in Dallas.

    I appreciate what David Coale is trying to convey, but a Hail Mary pass with the clock running out is not a particularly apt football analogy here. The more apt football analogy is that this is an appeal to the NFL Commissioner about a straightforward referee call in the first quarter of a game that was decided by more than a TD and ended a month ago.

  2. Jeff N. says:

    What blank said.

    Plus, the briefs filed by Texas and Trump were written by the same lawyer from D.C., Lawrence Joseph, according to their metadata. https://twitter.com/ariehkovler/status/1336786099000238080?s=12

    Joseph is a private lawyer in D.C., not a regular lawyer in Paxton’s office. He’s the guy who came up with these terrible arguments for Trump and Texas, but he was careless about scrubbing his metadata.

    So the team that lost the game hired a single lawyer to file multiple appeals for different teams to make it look like the other teams have a genuine interest in following the rules. But they don’t. The briefs are all written by the same D.C. lawyer using a sock puppet because some of the teams don’t like the winner. Sounds like cheating, doesn’t it?

  3. C.L. says:

    Paxton’s setting the stage for a pre-conviction pardon request to Trump on/around 01/19/21.

    No other way to explain this ‘monkey f***ing a football’ legal fiasco.

  4. Kibitzer Curiae says:

    Re: Plus, the briefs filed by Texas and Trump were written by the same lawyer from D.C., Lawrence Joseph, according to their metadata.

    Two cents on this:

    Probably true, but not positive proof of authorship generally. This could also happen if (1) a template file (or earlier pleading/petition/brief from a different case) is recycled to conform to a particular document layout and format needed for a particular court or purpose, or (2) if someone other than the person whose name is on the Microsoft license (or other applicable software) on the computer used to prepare the document wasn’t aware that the registered user’s name is automatically included as metadata.

    Additionally, the metadata author field could be manually changed either in MS Word itself or in the process of converting the document to PDF. The retention of the document author metadata is not uncommon even if the default setting is to scrap out other metadata.

    Competent ghostwriters would know about this and could either delete their own name or enter the name of the person for whom they prepared the commissioned work, assuming the latter’s approval.

    That said, the meta author name of the document filed for Trump here matches the name of the attorney listed as outside counsel for the State of Texas on Paxton’s filing, so it’s highly likely that the two documents share common authorship at least in part (and that the same names also pertain to the same person), but it’s also possible that the true author could actually be an underling of the person identified by the meta author name that drafted the overlapping portion of the content.

    Since the federal amicus rule requires disclosure of who contributed to the effort,
    the apparent nondisclosure of joint authorship here would seem to be a violation, and would also seem to merit the monicker “sockpuppetry” (applauding yourself collaterally while pretending to be someone else).

    Procedurally, however, the Trump filing is a proposed intervention, not a supporting amicus brief, so there the analogy fails and the rule governing the friends of the court would not even apply. And there is a big substantive distinction also: An intervenor is a party, assuming the intervention is allowed; an amicus is not. A party has to have standing, an amicus must just disclose an interest, if any, but is free to vent about the impending demise of democracy as we know it, or to channel the Framers’ original intent and the ghost of St. Antonin in a direction favorable to Trump, as suits their fancy.

    Additionally, and in a more general vein, it should be noted that it is common for appellate briefs to be “ghost-written” in the sense that the lead/e-signing attorney is not the one who actually drafted it, at least not the first version.

    As for AG Paxton specifically, his name is routinely listed as the first attorney in appellate litigation in which the State or a state entity is a party, but he is typically not even a service contact on the efile system, and is not served with copies of appellate briefs. This is hardly surprising, given the large volume of litigation and the large number of Assistant Attorney Generals that actually handle litigation on a day-to-day basis.

    As Texas Tribune and commentators have noted, what is unusual here is that Paxton himself e-signed the SCOTUS filing (and SG Hawkins did not). That also entails this: Paxton’s OAG email address is on it, so he is probably swamped by now with expressions of support (and perhaps some hate e-mail).

    That information regarding supporters nationwide could be very useful to him — politically and personally — regardless of what the SCOTUS does with his state-on-state lawsuit.

  5. Bill Daniels says:

    Just popping in to point out that we’re now up to 21 states suing the Dominion cheating states. So it’s not just Paxton trying to get press time. And as to the totally debunked conspiracy theory that Paxton is doing this to angle for a presidential pardon…..the reality is, a presidential pardon only takes care of federal crimes, not state crimes. Deboonked.

  6. C.L. says:

    Yup, except that Paxton IS under investigation by the FBI for bribery and abuse of office….federal crimes.

    Double deboonked.

  7. Bill Daniels says:

    LOL! Ken’s indictment is in state court. It’s 5 years old now, so it would be old enough to start kindergarten, if all the kids weren’t sent home for the Wu flu.

    Leftist friendly source:

    https://www.msn.com/en-us/news/crime/texas-attorney-general-ken-paxton-was-indicted-5-years-ago-he-still-hasn-t-gone-to-trial/ar-BB17ilHb

    As far as being under FBI investigation…dude….ALL Trump supporters are under FBI investigation. Hell, even Hunter Biden is under FBI investigation. It would probably just be easier to list people who are NOT under FBI investigation.

  8. Jules says:

    We’re aware Paxton has committed both state and federal crimes.

  9. Manny says:

    Bill the orange buffoon lost by nearly 8,000,000 votes. I told you that if the buffoon won you could come on this site an gloat, you both lost, Losers. You have been wrong about all those right-wing nuts that Trump appointed to the supreme court, they ain’t as nutty as you or the orange buffoon.

    You fascists are not going to win, this may have been your last big battle, Texas will soon be blue, the fascist republicans can’t do enough cheating to stop it.

  10. […] here and here for the background. A copy of the court filings are at the CNN story, but the best part of the […]

  11. Mark Brandenberger says:

    My thought is simply this. Ken Paxton knows he’ll be needing a Presidential pardon shortly. How better to secure a pardon that to kiss Trump’s ass with this lawsuit?

  12. John T says:

    I hope the state of Texas is not paying for this frivolous law suit!?!?!?!?! I hope and the others receive a bill. I wouldn’t look for Trump’s help, he knows now he is one of three of the worst Presidents in our nation’s history, who could not even win a second term of office. Paxton, if I could, nothing would be better than for you to be recalled. I can’t even rationalize your actions, behaviors or reasoning. I hope Trumpism is not catching. It would take an amendment to change the electoral system. I would hate the courts to decide an election. I think then their would be a cry for impeachment for Justices.

  13. John T says:

    Frivolous lawsuit helpful? He, Trump and his lawyer must sleep together. All are delusional, Politically Trump is finished. He couldn’t win an election for dog catcher and win. Trump reminds me of Nixon, except worse. And I voted for both of those crooks. They both fooled me the first time, but not the second time.