Now we wait on SCOTUS

The state of Texas filed its reply to the defendants’ responses to its democracykilling lawsuit, and, well, it’s something.

Best mugshot ever

This brings us the Texas AG Ken Paxton’s reply–or, rather, replies, as there are multiple filings, including a motion to enlarge the word-count limit, a supplemental declaration dated today from Charles Cicchetti, and a new affidavit prepared yesterday from one Lisa Gage.

The first reply brief focuses on rebutting the factual and legal claims made by the four defendant states. The brief starts with the facts, and AG Paxton’s choice of emphasis here is quite interesting, as the brief leads with an extended defense of statistical stupidity contained in the initial filing and the Cicchetti declaration (hence the newly drafted supplemental declaration which is attached). Here, the Paxton brief argues “Dr. Cicchetti did take into account the possibility that votes were not randomly drawn in the later time period but, as stated in his original Declaration, he is not aware of any data that would support such an assertion.” In other words, because he does not know anything about the two sets of voters, it was okay to assume they were identical for purposes of assessing the statistical likelihood that they would vote differently. That this is the lead argument in the reply tells you most of what you need to know. (Well, perhaps not, as other parts of the factual discussion misrepresent claims made by defendant states or repeat claims that were considered and rejected in other suits over the past month.)

On the law, the Texas reply essentially argues that the handful of attorneys in the Texas AG’s office who were willing to sign on to the brief know more about the election laws of Georgia, Michigan, Wisconsin, and Pennsylvania than do the Attorneys General and Secretaries of State of those various states. It further argues that although state legislatures have “plenary” authority to set the manner in which states select electors, this somehow does not include the authority to authorize the involvement of courts and election agencies, and that the U.S. Supreme Court, not the supreme courts of the respective states, should be the final authority on the meaning of relevant state laws and constitutional provisions. (Yay federalism!)

The other Texas filing, styled as a reply in support of Texas’s plea for emergency injunctive relief, is not much better. It does, however, deploy a powerful use of capitalization in the Table of Contents (“Texas IS likely to prevail”). Note that Texas does not have to worry about any of the defendant states responding in kind (“Texas IS NOT likely to prevail”) because this is the last brief to be filed.

In this brief, Texas argues that it is not seeking to disenfranchise voters. Rather, Texas argues, “Defendant States’ maladministration of the 2020 election makes it impossible to know which candidate garnered the majority of lawful votes.” Of course, to the extent this were true, Supreme Court intervention would not be necessary. If the relevant state legislatures concluded that the results of the elections within their states were indeterminate–that the voters had failed to select electors on election day–they could act, but they have not. Here Texas repeats its arguments that federalism requires the Supreme Court ordering state legislatures to act and possibly even hold new elections because Texas does not like how other states have run their elections.

It’s already time for some tweets.

One possible way to avoid that outcome is for SCOTUS to shut this shit down hard.

The easy thing for the Supreme Court to do is simply deny Texas permission to file the complaint (and deny the motions to intervene as moot) and be done with it. No fuss, no muss.

But the court should do more. It is perfectly ordinary and appropriate for the justices to write an opinion explaining the various reasons why they are rejecting Texas’ request. Indeed, the minority of justices who think that the court is required to accept original actions like Texas’ may well write short opinions of their own or note that they think the case was properly filed. So there is nothing overreaching if a majority of the court explains why the case is meritless.

The justices’ decision whether to do that needs to account for this extraordinary, dangerous moment for our democracy. President Donald Trump, other supportive Republicans, and aligned commentators have firmly convinced many tens of millions of people that the 2020 presidential election was stolen. If that view continues to take hold, it threatens not only our national politics for the next four years but the public’s basic faith in elections of all types that are the foundations of our society.

A simple five-page per curiam opinion genuinely could end up in the pantheon of all-time most significant rulings in American history. Every once in a long while, the court needs to invest some of its accumulated capital in issuing judgments that are not only legally right but also respond to imminent, tangible threats to the nation. That is particularly appropriate when, as here, the court finds itself being used as a tool to actively undermine faith in our democratic institutions — including by the members of the court’s bar on whom the justices depend to act much more responsibly.

In a time that is so very deeply polarized, I cannot think of a person, group or institution other than the Supreme Court that could do better for the country right now. Supporters of the president who have been gaslighted into believing that there has been a multi-state conspiracy to steal the election recognize that the court is not a liberal institution. If the court will tell the truth, the country will listen.

I’m not so sure I share the optimism, but I agree it would be the best thing that SCOTUS could do.

More Republicans have lined up to join Paxton on his lemming suicide bomber dive, including some who are seemingly claiming their own elections are also tainted.

Maybe the most ridiculous thing about this ridiculous moment, is that among the 126 Republican House members who have signed on to a document that they know to be not just false in its content, but malicious in its intent, are 19 from states that are the subject of the suit.

So Representatives like Doug Collins and Barry Loudermilk in Georgia are arguing that their own elections were fraudulent. Except, of course, they’re not making that argument. They’re not making any argument. They’re just hoping to gain “street cred” from adding their signatures to a list of people who support Trump rather than America.

You know who else is on Team Dictatorship? Dan Crenshaw, that’s who. This Dan Crenshaw.

U.S. Rep. Dan Crenshaw told Veterans Affairs Secretary Robert Wilkie that a woman who reported sexual assault at a VA hospital had filed frivolous complaints when she and Crenshaw served in the same Navy command, according to testimony by several senior officials in a report by the agency’s watchdog.

Investigators said they were troubled by the way Wilkie and his agency handled the outcry of the woman, who is now a Democratic aide in the House of Representatives.

The Houston Republican’s link to matter, first reported by Newsweek magazine, was included in a report released by the agency’s inspector general on Thursday. The report details a number of apparent problems with the agency’s handling of complaints filed by the veteran, Andrea Goldstein, who alleged a VA hospital contractor “bumped his entire body against mine and told me I looked like I needed a smile and a good time.”


Senior VA officials told investigators that Crenshaw passed along information about Goldstein to Wilkie, the report says, which both Crenshaw and Wilkie have denied.

The report points to an email Wilkie sent Chief of Staff Pamela Powers and Brooks Tucker, assistant secretary congressional and legislative affairs, after a fundraiser that he and Crenshaw both attended. It said: “Ask me in the morning what Congressman Crenshaw said about the Takano staffer whose glamor (sic) shot was in the New York Times.”

While Wilkie told investigators that Crenshaw approached him at the December 2019 fundraiser and brought up the veteran, he claimed that Crenshaw merely told him they served together. When investigators asked Wilkie why that information was enough to merit the email he sent after the fundraiser, he responded, “Well, I don’t remember. I have no idea.”

Both Powers and Tucker, however, told investigators they recalled Wilkie making comments about the veteran’s reputation “based on information they understood he received from Congressman Crenshaw.”

The report also says Deputy VA Secretary Jim Byrne told investigators that Wilkie had “verified with Congressman Dan Crenshaw that the veteran had previously filed frivolous complaints when the two were serving in the same command in the Navy.”

Crenshaw and his staff refused to answer VA investigators’ questions about the matter, the report says. Crenshaw’s office did not respond Thursday to a request for comment.

The Newsweek story is here. Remember Crenshaw’s craven refusal to answer questions about this the next time he tweets some garbage about how “all cases should be heard, all investigations should be thorough”. As a reminder, the Chron endorsed Crenshaw for re-election. The Orlando Sentinel has apologized for endorsing Rep. Michael Waltz, one of Crenshaw’s fellow members of the Sedition Caucus. I await the Chron taking similar action; merely excoriating Ken Paxton and Ted Cruz, without even mentioning Crenshaw for his role in this debacle, is insufficient.

Montana Governor Steve Bullock has observed, as part of his own amicus filing against the Paxton mess, that Texas did not include his state as a defendant even though Montana made the same kind of changes that Georgia et al did that Paxton finds so objectionable. Of course, Trump carried Montana, so it’s totally different. Governor Bullock also knows how to bring the snark:

SCOTUS may act on the Texas case even before I finish drafting this post, so let me wrap up while the outcome is still unknown. First, a few words from Adam Serwer about why Trump has so many rats following behind his rancid Pied Piper act:

To Trump’s strongest supporters, Biden’s win is a fraud because his voters should not count to begin with, and because the Democratic Party is not a legitimate political institution that should be allowed to wield power even if they did.

This is why the authoritarian remedies festering in the Trump fever swamps—martial law, the usurpation of state electors, Supreme Court fiat—are so openly contemplated. Because the true will of the people is that Trump remain president, forcing that outcome, even in the face of defeat, is a fulfillment of democracy rather than its betrayal.

The Republican base’s fundamental belief, the one that Trump used to win them over in the first place, the one that ties the election conspiracy theory to birtherism and to Trump’s sneering attack on the Squad’s citizenship, is that Democratic victories do not count, because Democratic voters are not truly American. It’s no accident that the Trump campaign’s claims have focused almost entirely on jurisdictions with high Black populations.

From Elizabeth Dye at Above the Law:

But perhaps we shouldn’t get waylaid in Constitutional and procedural niceties, lest we distract ourselves from the point that THIS IS BATSHIT. The state of Texas has filed a facially nonsensical suit purporting to vindicate the rights of the Defendant states’ legislatures from unconstitutional usurpation by overweening governors and state courts, a usurpation which supposedly violates the Elections Clause. And the proposed solution is for the Supreme Court itself to violate the Elections Clause by postponing the electoral college vote, thus usurping Congress’s power to “determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”

And instead of saying, “Slow your roll, Ken Paxton! We’ve been banging the drum about states’ rights for two hundred years now. It’s kind of our thing, you know?” the intervenor states are all in on this Frankenstein hybrid of vote dilution and anti-federalism. Rather than acknowledging the reality of Trump’s loss, these attorneys general would rather attach their names to a complaint which claims that it’s just mathematically impossible for Biden to have won those four Defendant states because, ummm, Clinton lost them. Don’t ask how Trump was able to flip Pennsylvania, Wisconsin, and Michigan after Obama won them in 2012 and 2008 — that formula is still being calculated.

Never mind that Texas’s governor Greg Abbott extended early voting by a week, the same dastardly usurpation of legislative prerogative which supposedly voids the election in the Defendant states. Pay no attention to the fact that Mississippi also allows votes to be counted if they arrive within three days of the election, which Paxton argues is patently illegal. Or that Utah conducted this election entirely by mail, which is, according to the complaint anyway, prima facie evidence of intent to allow vote fraud. IOKYAR.

The Trump motion to intervene is little more than a cleaned up version of the president’s Twitter feed, drafted by John Eastman, a law professor at Chapman University who is nonetheless confused about birthright citizenship and recently penned a racist Newsweek editorial wondering if Kamala Harris was eligible to run for president.

Mentioning this John Eastman character brings us to the final tweets, because all good blog posts about election theft end with tweets. These two are embedded in that ATL article:

As noted before, Lawrence Joseph is the outside counsel Ken Paxton hired for his lawsuit, since the Solicitor General declined to come on board. Wheels within wheels, y’all.

And finally, nothing could sum up this entire experience better than this:

From the neighborhood of New Heights in the city of New Houston and the state of New Texas, I wish you all a happy weekend. CNN has more.

UPDATE: Didn’t have to wait long, as it turns out.

The US Supreme Court on Friday rejected Texas’s unprecedented last-ditch effort to challenge President-elect Joe Biden’s win in Pennsylvania, Michigan, Georgia, and Wisconsin by suing those four states in the high court.

At least a majority of the justices concluded that Texas lacked standing to bring the case at all, a threshold the state had to clear before the case could go any further.

“Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections,” the court wrote in the brief order.

No justice noted that they had dissented from the decision to knock out Texas’s case from the start. It would have taken at least five justices to agree to hear the case, but the justices don’t have to individually indicate how they voted, so there’s no way to know the vote breakdown for certain. Justice Samuel Alito Jr., joined by Justice Clarence Thomas, wrote that they believed the court had to allow Texas to file its lawsuit, but they wouldn’t have granted any other relief that the state requested.

It was a significant loss not only for Texas, but for President Donald Trump, who had asked to intervene in the case and spent the the past two days tweeting about why the justices should effectively hand him an election that Biden won. The court denied all of the other motions filed in the case as moot once it decided Texas couldn’t bring the case at all, which ended Trump’s bid to get before the justices.

There’s plenty more stories out there – go to Google News or Trending on Twitter if you haven’t come across any others. The Electoral College meets on Monday, and after that it really is over, though one presumes the delusions will continue. I’m going to finish with some more tweets. You should go outside and enjoy the day.

Not sure how I feel about this. It’s right there in the Constitution, but it’s also overturning the will of the voters, which is what the Sedition Caucus was trying to do. I am happy to have a discussion about this, however. Let these bastards explain why they haven’t violated the Constitution.

Speaking of bastards and being in opposition to the Constitution:

Yeah, I don’t even know what to say to that. But I would very much like to know what every elected Republican thinks about it. Let’s get them all on record, shall we? Rick Hasen has more.

Related Posts:

This entry was posted in Election 2020, Legal matters, The making of the President and tagged , , , , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

26 Responses to Now we wait on SCOTUS

  1. Manny says:

    Don’t hold your breath waiting for Houston Chronicle to do the right thing, they are part of the problem with journalism.

  2. Flypusher says:

    We have some throughly crappy politicians in this state, but so much of that is on the voters. We have people who are perfectly happy with an authoritarian strongman and people who don’t even bother to vote. No surprise these clowns are so brazen in their sedition; they have correctly figured they are not likely to get punished for it. I’d love to be proven wrong on that last sentence.

  3. David Fagan says:

    Paxton trigger the next civil war? Maybe a civil war on social media.

  4. Ross says:

    BREAKING NEWS …… Rudy Giuliani is working out how to apply to the Galactic Federation Supreme Court

  5. SocraticGadfly says:

    Remember, all state and local level elected officials also have to swear an oath to preserve, protect and defend the constitution of the United States. Any state Legiscritters who mouth the word “secession” need to be blocked from taking their seats.

  6. David Fagan says:

    Legiscritters, funny

  7. Bill Daniels says:

    Here’s legiscritter Al Green responding to a constituent:

    Constituent: Stop selling us out to China!

    Big Al Green: There’s nothing you can do about it!

    I mean, I appreciate his honesty. Most of them just try to hide it or lie about it. Al just comes right out and says it.

  8. Manny says:

    Bill you are a sick racist, fascist that can’t stop with hate promoting, I listened to the streaming video and you lied, that he said he was selling out to China.

    I love you, nothing you can do about it.

  9. Bill Daniels says:


    I quoted EXACTLY what was said. Stop lying. Or are you saying the video was manipulated somehow? If so, show evidence. Damn, you’re truly Winston Smith, so beaten down that you’ll say 2+2=5, and actually believe it.

  10. Ross says:

    Anyone who thinks that government can stop the transfer of jobs overseas is dreaming. Some manufacturing jobs might return if onerous enough tariffs are imposed, but the reason people like buying stuff from China is the price. Lots of folks love getting cheap Chinese stuff at WalMart, etc. Stopping the move of professional jobs is nigh on impossible, given almost free unlimited bandwidth, and the fact that much of that work is international anyway. That’s your free market at work, Bill.

  11. C.L. says:

    Americans want their shit cheap or free. That’s the fact. Until that changes, Dollar General, Dollar Tree, Target, Wal Mart, etc,, are going to continue to eat our lunch in the consumer product arena.

  12. Secession Déjà vu

    “For these and other reasons, solemnly asserting that the federal constitution has been violated and virtually abrogated by the several States named, seeing that the federal government is now passing under the control of our enemies to be diverted from the exalted objects of its creation to those of oppression and wrong, and realizing that our own State can no longer look for protection, but to God and her own sons–We the delegates of the people of Texas, in Convention assembled, have passed an ordinance dissolving all political connection with the government of the United States of America and the people thereof and confidently appeal to the intelligence and patriotism of the freemen of Texas to ratify the same at the ballot box, on the 23rd day of the present month.”

    Adopted in Convention on the 2nd day of February, in the year of our Lord one thousand eight hundred and sixty-one and of the independence of Texas the twenty-fifth.

    SOURCE: Winkler, Ernest William, ed. Journal of the Secession Convention of Texas 1861, Edited From the Original in the Department of State…. Austin: Texas Library and Historical Commission, 1912, pp. 61-65.


    “We hold as undeniable truths that the governments of the various States, and of the confederacy itself, were established exclusively by the white race, for themselves and their posterity; that the African race had no agency in their establishment; that they were rightfully held and regarded as an inferior and dependent race, and in that condition only could their existence in this country be rendered beneficial or tolerable.”

    “That in this free government all white men are and of right ought to be entitled to equal civil and political rights; that the servitude of the African race, as existing in these States, is mutually beneficial to both bond and free, and is abundantly authorized and justified by the experience of mankind, and the revealed will of the Almighty Creator, as recognized by all Christian nations; while the destruction of the existing relations between the two races, as advocated by our sectional enemies, would bring inevitable calamities upon both and desolation upon the fifteen slave-holding States.”


  13. Manny says:

    Bill you are a racist, fascist, and stupid. I wrote down what congressman Green told the ignorant woman that was yelling. It is not about manipulation of videos. No where does he state or agree that he is selling out to China. Your God did that, also sold out to Russia, and North Korea, like the sheep that you are, u go along.

    Go hide under a rock where you belong. All you and your kind do is push hate and discord

  14. Bill Daniels says:

    Hey Manny,

    First, your NPC programming can’t even figure out that if Trump, like the Bidens, was bought off by China, he wouldn’t have started a trade war with them, or backed Taiwan so significantly. He wouldn’t have threatened US businesses to pull out of China and move their manufacturing elsewhere. You are so programmed that facts don’t even enter into it. But enough of that.

    Here’s the results of the inspection of the Michigan voting machines, which was watched by many folks involved in the Michigan election. Guess what they found? PROOF of massive cheating!

    For your reading pleasure:

    If Dominion machines were rigged in Michigan, what are the odds they were rigged in other states? If it was discovered that those machines had, instead, been rigged for Trump, would you want Michigan to send Trump electors, with the same level of fraud? Why or why not?

  15. Manny says:

    Bill the fascists will be trying to link Democrats and Biden to China for at least the next two years, it is all BS from racist loving democracy haters like you and most of the people that support the Republican Party.

    Being a victim is like being on drugs, you all are addicts.

    “President Donald Trump has made grievance a primary feature of his life and presidency, from the thousands of lawsuits he has filed to, most recently, his repeated claims of national election fraud … The hallmark of addiction is compulsive behavior despite harmful consequences. Trump’s unrelenting efforts to retaliate against those he believes have treated him unjustly (including, now, American voters) appear to be compulsive and uncontrollable.

    “…. it turns out that your brain on grievance looks a lot like your brain on drugs. In fact, brain imaging studies show that harboring a grievance (a perceived wrong or injustice, real or imagined) activates the same neural reward circuitry as narcotics.
    US President Donald Trump speaks to the media as he arrives at the White House in Washington, DC, on January 6, 2019, after meetings at Camp David. – US President Donald Trump stood firm Sunday on his demand for billions of dollars to fund a border wall with Mexico, claiming “tremendous” support inside his camp on the contentious issue which has forced a government shutdown now entering its third week.”We have to build the wall,” Trump told reporters as he left the White House for the Camp David presidential retreat. “It’s about safety, it’s about security for our country. (Photo by Jim WATSON / AFP) (Photo credit should read JIM WATSON/AFP/Getty Images)

    “Like substance addiction, revenge addiction appears to spread from person to person


    You’ll are very sick people Bill to quote Al Green: I love you, nothing you can do about it.

  16. Bill Daniels says:

    So, nothing to say about rigged voting machines, Manny?

  17. Ross says:

    Bill, why do you post links to documents created by people with no credibility? Your guy lost. Deal with it. Go get some help from a qualified mental health professional. You really need to figure out why you support a narcissistic buffoon whose only goal is self aggrandizement and grifting for himself and his family. And, why do you support someone who doesn’t think he should follow the law?

  18. Ross says:

    Bill, I also have to ask why you support someone whose goal appears to be the destruction of the United States, and conversion to a fascist form of government, with increased hatred of people of color. I didn’t notice Trump condemning the Proud Boys removal of a BLM banner from a Black church in DC. Why do you think Trump keeps supporting White supremacists? Bill, have you stopped supporting White supremacists?

  19. Bill Daniels says:


    Going soft on us now? You had ZERO problems with your people burning St. John’s Church. You were apoplectic when Trump sent federal law enforcement to stop your people from finishing the job the next day. Terribly upsetting. You obviously care not a whit about historic churches. But now, here you are, complaining that some Marxist banners were burned? Oh, noes, some Marxist, anti-American, anti-white propaganda banners were destroyed? You’re going to cry about that, but not about the attempted destruction of St. John’s Church? The black church leadership that supported the St. John’s Church vandalism are upset now that violence is getting close to their own church? Ha! Should have stood in solidarity with the guy trying to prevent the street violence in the first place!

    C’mon, man!

    Who started the rioting, Ross? Your people. Who overlooks the rioting and prevents the police from stopping it? Your people. Who refuses to prosecute rioters, yet zealously prosecutes anyone who stands up to rioters? Your people.

    You’re playing a dangerous game, Ross. We should all be hoping that Trump can clean this mess up, and hope that he can do so without invoking the Insurrection Act. Sadly, it looks like you’re giving him no choice.

  20. Jules says:

    Michigan’s electoral votes just went for Biden. I guess it didn’t matter if Manny had a good comeback for idiotic nonsense or not.

  21. Manny says:

    Jules not even sure why he spends time on this blog. I have no idea what mind he is trying to change or if he is just delusional and grasping for straws of reality.

    But I try to keep up with the strategy of misinformation that the Republican cult is working on.

    The people in power who are afraid of losing it have resorted to misinformation since the formation of our country.

    “Members of what became Thomas Jefferson’s party were hounded, fined, and imprisoned under the Alien and Sedition Acts signed by President John Adams–“the reign of witches,” Jefferson called it. Jefferson himself was assailed as a godless anarchist, a sexual mauler, an adulterer, a betrayer of friends, a chronic liar, and, lastly, a keeper of a black concubine. Andrew Jackson had an election stolen from him; in the next contest, he was painted as the son of a prostitute and a mulatto, a bigamist, crook, and murderer; in the next, as “King Andrew,” trampling the Constitution. In-office, in payment for his fiercely fought positions, he became the first president ever censured by the Senate, for having, it charged, “assumed upon himself authority and power not conferred by the Constitution and laws, but in derogation of both.” Had his enemies had a majority in the House, he would undoubtedly have been the first president to be impeached. Lincoln was caricatured as a baboon, a primate from the frontier Midwest, a “black Republican,” perhaps black himself, a trickster storyteller, Dishonest Abe. Franklin Roosevelt was despised as a traitor to his class, a dictator, habitually dishonest, a feebleminded playboy, and a warmonger. John F. Kennedy was loathed as a betrayer of national security, a communist sympathizer, a traitor, a Catholic Negro-lover, a libertine liberal, an illegitimate pretender, a fraud, and a calculating dissembler. …”

  22. Jules says:

    Now with California done, President-elect Biden had 302 electoral votes. Hawaii will make it 306.

  23. Ross says:

    Bill, I don’t believe I ever posted anything about rioters burning churches. If I had, you would have read that I am opposed to burning any property that doesn’t belong to the rioters, and that law enforcement should take the appropriate action.

    You apparently think it’s OK to burn other people’s property when it conveys a message you don’t like. Using your logic, it would be perfectly fine for someone to burn down your house for displaying a Trump flag. Is that what you meant to imply?

    Your guy lost. Get over it.

  24. Jules says:

    President-elect Biden received 306 electoral votes, 2 more than the 304 trump got in 2016. Looking forward to January 20!

  25. Pingback: Can Ken Paxton be sanctioned for his seditious lawsuit? – Off the Kuff

Comments are closed.