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The states respond to Paxton

Now we wait for SCOTUS. I sure hope they’re quick about it.

Best mugshot ever

Each of the four battleground states targeted by a Texas lawsuit seeking to overturn President Donald Trump’s election defeat issued blistering briefs at the Supreme Court on Thursday, with Pennsylvania officials going so far as to call the effort a “seditious abuse of the judicial process.”

The court filings from Georgia, Michigan, Pennsylvania and Wisconsin come a day after Trump asked the Supreme Court to intervene in the lawsuit brought by Texas Attorney General Ken Paxton seeking to invalidate millions of votes in their states. The lawsuit amounts to an unprecedented request for legal intervention in an election despite there being no evidence of widespread fraud.

“Texas’s effort to get this Court to pick the next President has no basis in law or fact. The Court should not abide this seditious abuse of the judicial process, and should send a clear and unmistakable signal that such abuse must never be replicated,” wrote Pennsylvania Attorney General Josh Shapiro.

The Texas lawsuit, Shapiro said, rested on a “surreal alternate reality.”

[…]

Despite the slate of inaccurate claims driving the lawsuit, more than 100 House Republicans signed on to an amicus brief in support of Paxton’s motion.

Notable Republican leadership names on this list include House Minority Whip Steve Scalise and Republican Policy Committee Chairman Gary Palmer.

“The unconstitutional irregularities involved in the 2020 presidential election cast doubt upon its outcome and the integrity of the American system of elections,” the brief said without evidence.

“Amici respectfully aver that the broad scope and impact of the various irregularities in the Defendant states necessitate careful and timely review by this Court.”

Beyond the four states subject to the Texas lawsuit, more than 20 other states and Washington, DC, also submitted an amicus brief deriding the effort and urging the high court to deny Texas’ motion.

“The Amici States have a critical interest in allowing state courts and local actors to interpret and implement state election law, and in ensuring that states retain their sovereign ability to safely and securely accommodate voters in light of emergencies such as COVID-19,” the brief said.

Shapiro’s particularly fiery brief assessed that the Texas lawsuit is “legally indefensible and is an affront to principles of constitutional democracy.”

“Nothing in the text, history, or structure of the Constitution supports Texas’s view that it can dictate the manner in which four sister States run their elections, and Texas suffered no harm because it dislikes the results in those elections.”

See here and here for the background. A copy of the court filings are at the CNN story, but the best part of the Pennsylvania filing, which uses the word “seditious”, is here. Despite the sound and fury, there’s some suggestion that even the sedition-committers know that it all signals nothing.

Six states attorneys general, led by Missouri AG Eric Schmitt, have moved to intervene in Texas v. Pennsylvania, the lawsuit filed by Texas Attorney General Ken Paxton that seeks to prevent the selection of presidential electors based upon the November election results in four states (Pennsylvania, Georgia, Wisconsin, and Michigan). Yesterday, 17 states, also led by Missouri AG Schmitt, filed an amicus brief in support of the Texas suit. I wrote about that filing here.

There are a few notable things about today’s filing. First and foremost, it is notable than only six of the states that joined yesterday’s amicus brief (Missouri, Arkansas, Louisiana, Mississippi, South Carolina, and Utah) were willing to join today’s motion to intervene and join the Texas Bill of Complaint. This suggests that some of the state AGs who were willing to say that the claims raised by Texas are sufficiently serious to warrant the Court’s attention were not willing to actually endorse the substance of those claims. Perhaps this indicates there is only so far they are willing to go to virtue-signal their support for the Trump tribe. (Yesterday’s filing from Arizona can be viewed in a similar light.) In the alternative it could simply represent discomfort with some of the claims this new briefing supports, which leads to my next point.

It gets into the legal weeds from there, so read the rest if you’re so inclined. In the meantime, there may still be a couple of respectable voices here in Texas.

The state’s Big Three — Gov. Greg Abbott, Lt. Gov. Dan Patrick and House Speaker Dennis Bonnen — have all supported the suit, and Texas Sen. Ted Cruz has reportedly even agreed to argue the case before the U.S. Supreme Court if it advances, which legal experts say is extremely unlikely.

More than half of the Texas Republican congressional delegation — 12 members including Reps. Dan Crenshaw, Kevin Brady and Randy Weber — were among the 106 House members to sign onto a brief in support of the suit.

[…]

Still, in what is shaping to be yet another with-Trump or against-Trump moment for Republicans in Congress, the Texas delegation is splitting.

Texas Sen. John Cornyn doubts that Paxton even has grounds to sue. “It’s an interesting theory,” he said, “but I’m not convinced.”

On Thursday, Cornyn — a past Texas attorney general, as is Abbott — was joined by several more prominent Republicans in his dissent.

Rep. Kay Granger, who has represented North Texas for almost two decades, told CNN she did not see the suit going anywhere and called it a “distraction.”

“I’m not supporting it,” Granger said. “I’m just concerned with the process.”

Conservative firebrand Rep. Chip Roy excoriated the suit, saying he could not join colleagues in the House in writing a brief to support the suit because he believes it “represents a dangerous violation of federalism and sets a precedent to have one state asking federal courts to police the voting procedures of other states.”

“I strongly support the continued pursuit of litigation where most likely to succeed — such as Georgia — to bring to light any illegal votes and encourage, if necessary, state legislatures to alter their electors accordingly,” Roy tweeted. “But, I cannot support an effort that will almost certainly fail on grounds of standing and is inconsistent with my beliefs about protecting Texas’ sovereignty from the meddling of other states.”

I give Kay Granger a B+, Cornyn a C, and Roy a D – he was perfectly happy to throw manure on the concept of voting by mail, so his disagreement was entirely about tactics, not principles. I remind you, as recently as 2016, Republicans in Harris County cast more votes by mail than Democrats did. As for Dan Crenshaw, I hope that the next time we try to tell the voters in his district that he’s nothing more than a faithful foot soldier for Donald Trump, they believe us.

Not that Ken Paxton cares, but I appreciate what the DMN editorial board says to him.

Your lawsuit, as you should know, will fail on the merits. Every piece of evidence shows the same result. Donald Trump lost this election. This is why the high court will turn you away, as courts have repeatedly turned away suits seeking to reverse the election’s outcome.

That is not to say that your decisions are without consequence. As the state’s attorney general, you chose to mislead the public by acting as if there were a legal case to defy the will of the voters as expressed through legally administered elections, and this will cause lasting damage to our political system and to faith in our elections. Much like crying wolf when there is no animal in sight, your lawsuit will undermine legitimate complaints in the future about voter fraud and undercut legitimate work in the future to ensure ballot integrity.

Your leadership is also fueling cynicism, empowering conspiracy theorists who operate on accusation rather than fact, and enabling those who seek election confusion rather than clear, compelling and accurate election results. This is leadership unbecoming of your office. It is a disservice to Texans who deserve a well-run office of the attorney general and who depend on a fair administration of justice.

We really need to vote him out in 2022. I’ll wrap up with some tweets.

I’ll blog about that more fully when I see a story. It just sure is hard to separate the timing, and the cravenness, of this lawsuit from Paxton’s immediate needs. We’ll see what SCOTUS has to say, and when they have to say it. Daily Kos and NBCNews have more.

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4 Comments

  1. voter_worker says:

    I wish I had thought of this but I didn’t. Conservative (actual) commentator Charlie Sykes, writing today in The Bulwark, dubbed the 106 R House members who are on an amicus brief re: Paxton’s lawsuit “the Kraken caucus”.

  2. mollusk says:

    Aaaaaaaand they’re done. Petition denied due to lack of standing because “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” Alito and Thomas dissent, as expected, because they would grant leave to allow all suits of this type to go forward.

  3. Kibitzer Curiae says:

    LAST STAND, BUT NO STANDING

    Here is the ruling verbatim:

    “The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.

    Statement of Justice Alito, with whom Justice Thomas joins: In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction. See Arizona v. California, 589 U. S. ___ (Feb. 24, 2020) (Thomas, J., dissenting). I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue.”

    Concerning the Alito cum Thomas statement, what’s the big deal?

    At least when viewed from Texas, it’s unremarkable because this was an *original* proceeding.

    As such, you can analogize it with the filing of a garden-variety lawsuit, a multi-billion dollar class action, or a crapshop handwritten pro-se lawsuit against the guy-done-you-wrong with the District Clerk or County Clerk. How does that work? – Anybody can sign up for a Texas eFile account and file a lawsuit in any trial court. You can even write it up by hand and drop it in the Harris County after-hours filing box, with money order for filing fee attached. If it’s really bad, you might be facing sanctions, but it doesn’t mean it won’t go on the docket for the whole world to behold. — AG Paxton probably won’t face sanctions for filing his piece of Texas-sized cow pie for — shall we say — an improper purpose.

    As for an analogy with original proceedings filed directly in the Texas Supreme Court (incl. Elec. Code Mandamus actions, which have been popular lately), we have seen multiple crappy ones by the Hotze/Woodfill pair, and another one by the lawyer for Shelley Luther challenging non-election related anti-COVID measures. Not only were these filings not rejected out of hand, Luther’s lawyer was even rewarded with an opinion concurring in dismissal by Justice Jimmy, giving him “free legal advice” on how to improve his game next time:

    “This original petition, which challenges several local officials’ coronavirus response measures, should first be presented to the appropriate district courts. The Supreme Court is generally a court of last resort. Our original jurisdiction to issue the requested relief is doubtful, and the petition is presented without supporting affidavits and with no record on which the Court could base its inquiry. Just as other government officials must not exceed their rightful power in extraordinary circumstances, this Court also must not do so. I therefore concur in the denial of the petition.”

    In re Salon a La Mode, No. 20-0340, ___ S.W.3d ___, ___ (Tex. 2020) (Blacklock, J., concurring).

    MOTION FOR LEAVE TO FILE AN ORIGINAL ACTION

    Since the SCOTUS serves the entire US, it arguably makes sense that a *motion for leave* would be required as an additional gateway control measure for original lawsuits, but the lack-of-standing disposition wouldn’t be any different at the next stage.

    The critical point here is the *rationale* for the case-termination (even though it’s been rendered at the motion-for-leave stage): lack of standing, which means no case/controversy that the Court can adjudicate as a matter of jurisdiction, with no inference possible as to what members of the court might think about the merits of the legal and factual claims.

    The gist of the ruling in the vernacular: It’s not just “Don’t Mess with Texas.” It’s also about “Don’t Let Texas Mess with Other States.”

  4. […] state of Texas filed its reply to the defendants’ responses to its democracy–killing lawsuit, and, well, it’s […]