Texas Sues Four States To Invalidate Their Electoral Votes (No, Seriously) (Updated)

The most corrupt state attorney general in the United States, the indicted Ken Paxton of Texas, Texas AG Accused Of Felonies By People Working In The AG’s Office, really outdid himself today in proving just how unfit he is for the office he holds. Wow.

In the most desperate post-election lawsuit filed to date, CNBC reports, Texas sues four battleground states in Supreme Court over ‘unlawful election results’ in 2020 presidential race. Just to be clear, this is not actually a thing a state can do:

Texas’ Republican attorney general, Ken Paxton, on Tuesday announced a lawsuit in the U.S. Supreme Court to invalidate presidential election results in four key swing states that helped secure Democrat Joe Biden’s victory over President Donald Trump.

The unusual lawsuit, which was filed directly to the Supreme Court, asserts that “unlawful election results” in Pennsylvania, Georgia, Wisconsin and Michigan — all of which Biden won — should be declared unconstitutional.

Legal experts quickly dismissed the case as political theater without precedent in American history.

The filing argues that those states used the coronavirus pandemic as an excuse to unlawfully change their election rules “through executive fiat or friendly lawsuits, thereby weakening ballot integrity.”

“Any electoral college votes cast by such presidential electors appointed” in those states “cannot be counted,” Texas asks the high court to rule.

The Lone Star State’s attempt to discount other states’ electoral votes follows a slew of long-shot legal challenges with similar goals that have been brought in lower courts by Trump’s campaign and other attorneys. Those lawsuits have repeatedly failed to invalidate ballots cast for Biden.

The claims in Texas’ lawsuit “are false and irresponsible,” Georgia’s deputy secretary of state, Jordan Fuchs, said in a fiery statement shortly after Paxton announced the legal action.

“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,” Fuchs’ statement said.

Michigan Attorney General Dana Nessel called the suit a “publicity stunt” and “beneath the dignity” of Paxton’s office. Josh Kaul, the attorney general of Wisconsin, said in a statement the case was “genuinely embarrassing.”

Experts in election law were also quick to dismiss the likelihood of the nine Supreme Court justices taking the case. Paul Smith, a professor at Georgetown University Law Center who has argued voting rights cases at the Supreme Court, said the case was “wacko.”

“There is a whole system in Pennsylvania and the other states for contesting the election — that’s all been done,” said Smith, who also serves as vice president of litigation and strategy at the nonpartisan Campaign Legal Center. “I don’t think the Supreme Court will have interest in this.”

The professor added that Texas could run into trouble in proving that it has grounds to sue, known in legal terms as “standing.”

“It’s totally unprecedented, the idea that one state would, at the Supreme Court, claim that other states’ votes were cast in the wrong way — that’s never happened,” he said. “What is the injury to the state of Texas because Pennsylvania’s votes were cast for Mr. Biden instead of Mr. Trump? There is no connection there.”

Rick Hasen, an election law expert at the University of California, Irvine, wrote on his popular legal blog that the suit was “utter garbage” and also disputed the idea that Texas had standing, noting that “it has no say over how other states choose electors.” (more below).

Paxton wrote in the brief that Texas has standing because of its interest in which party controls the Senate, which it says “represents the States.”

“While Americans likely care more about who is elected President, the States have a distinct interest in who is elected Vice President and thus who can cast the tiebreaking vote in the Senate,” he wrote.

“This injury is particularly acute in 2020, where a Senate majority often will hang on the Vice President’s tie-breaking vote because of the nearly equal—and, depending on the outcome of Georgia run-off elections in January, possibly equal — balance between political parties,” Paxton added.

The lawsuit against the four states comes on a pivotal deadline in the election certification process, known as the “safe harbor” threshold, after which Congress is compelled to accept states’ certified results.

Six days later, electors in the Electoral College will cast their votes, finalizing Biden’s win. The suit is also asking the Supreme Court to extend that Dec. 14 deadline “to allow these investigations to be completed.”

In most cases, the Supreme Court only hears cases from lower courts that have been appealed. In cases between two or more states, however, the court has original jurisdiction. It generally requires four justices to agree to hear a case.

The suit comes as Paxton faces an FBI criminal investigation related to alleged efforts to help a wealthy campaign donor. The investigation was confirmed by The Associated Press after seven senior lawyers in Paxton’s office claimed to authorities in September that Paxton was guilty of abusing his office.

All seven have since been fired, put on leave or resigned, spurring a whistleblower lawsuit from several of them. Paxton has denied wrongdoing.

Rick Hasen’s Election Law Blog expounds:

I may need to take back what I said about Rep. Kelly’s PA suit being the dumbest case I’ve ever seen filed on an emergency basis at the Supreme Court.

This new one from the indicted Texas AG Ken Paxton (but missing the name of Texas’s Solicitor General, who surely would not sign this garbage) probably should win that prize.

Steve Vladeck canvasses the reasons why the Court won’t touch the case (including  its rules on taking cases directly under its original jurisdiction).

My view in brief: this is a press release masquerading as a lawsuit. Texas doesn’t have standing to raise these claims as it has no say over how other states choose electors; it could raise these issues in other cases and does not need to go straight to the Supreme Court; it waited too late to sue; the remedy Texas suggests of disenfranchising tens of millions of voters after the fact is unconstitutional; there’s no reason to believe the voting conducted in any of the states was done unconstitutionally; it’t too late for the Supreme Court to grant a remedy even if the claims were meritorious (they are not).

What utter garbage. Dangerous garbage, but garbage.

Donald Trump’s insistence that he won this election is causing a collective insanity among his personality cult followers which has now reached peak levels on “Safe Harbor” day. Tick-Tock, the day is almost over, and time has run out on the clock.

UPDATE: Steve Benen raises an intriguing possibility which is entirely plausible:

Paxton was indicted a few years ago on felony securities fraud charges. Two months ago, his troubles got worse when members of Paxton’s own team made multiple criminal allegations against him.

Meanwhile, Associated Press reported a few weeks ago that the FBI is investigating allegations that Paxton “broke the law in using his office to benefit a wealthy donor.”

All of which raises an unfortunate possibility: as Donald Trump abuses his pardon powers, and weighs the possibility of handing out pardons “like Christmas gifts” before leaving office, is it implausible that the scandal-plagued Texas attorney general filed a doomed case in the hopes that he’ll receive a presidential reward that would make his legal troubles go away?

The Republican swamp of corruption runs deep.

Update (Tuesday, Dec. 8): On Tuesday evening, the Supreme Court called for a response to Texas’ filing by Thursday, Dec. 10, at 3 p.m.

Jonathan Chait reports, President of the United States Demands to ‘Overturn’ Election (excerpt):

Trump’s legal case against the election results has deteriorated into pure comedy. His lawyers have registered fewer victories (one, in an almost immaterial case regarding a deadline for proof of identification on mail ballots) than positive results for COVID-19 (two). His most recent lawsuit, filed in Texas, rests on the assertion that Joe Biden’s come-from-behind win, an outcome predicted uniformly by voting experts based on mail-in ballots being counted later in several states, had a probability of “less than one in a quadrillion to the fourth power (i.e., 1 in 1,000,000,000,000,0004).” He has lost more than 50 cases, with most of them being laughed out of court.

Yet 17 states[!] have signed on to Trump’s preposterous Texas lawsuit [as amicus curiae] , which also enjoys the support of both Georgia Senate candidates. And in the face of defeat, Trump’s rhetoric has simply grown more defiant. He has begun to openly call for the election to be “overturned.”

#OVERTURN

— Donald J. Trump (@realDonaldTrump) December 9, 2020

If somebody cheated in the Election, which the Democrats did, why wouldn’t the Election be immediately overturned? How can a Country be run like this?

— Donald J. Trump (@realDonaldTrump) December 9, 2020

Meanwhile, the sentiment that Trump has been robbed of a second term is rapidly congealing into a tenet of party faith. Fox News has lost market share to its even more slavish competitors because it called the election for Biden, and now its opinion-news lineup has begun aggressively wooing back Trump’s fan base by endorsing his fantastical claims. Last night, Sean Hannity waved a copy of the farcical Texas lawsuit as the decisive blow in the battle to expose the stolen election.

Pennsylvania state legislative majority leader Kim Ward explained that she signed a letter rejecting the election results because, she said, “If I would say to you, ‘I don’t want to do it,’ I’d get my house bombed tonight.” While Ward was almost certainly exaggerating for effect, it is true that armed pro-Trump protesters have menaced officials in states like Michigan, Arizona, and Georgia. More broadly, Republicans recognize that denying Trump’s lies puts their careers at risk.

Trump’s pattern of anti-democratic behavior tends to be an exaggerated version of tendencies that already existed within his party. (Trump picked up most of his ideas by watching party-aligned media like Fox News, with its regular claims of rampant Democratic fraud.) Republicans have usually resolved their discomfort with Trump’s most egregious claims by trying to co-opt them.

Republicans have predictably converted Trump’s demands for overturning the election into normal Republican politics. The base’s anger at the “fraud” translates to a ginned-up base that refuses to recognize Biden’s legitimacy and that will pressure Republicans to oppose anything the new president tries to do. In Georgia, Republicans are slashing the number of early-voting locations and proposing to eliminate mail-ballot drop boxes and to ratchet up new restrictions on mail voting. Trump’s wild rhetoric has turned out to be a useful pretext to impose the kinds of vote suppression Republicans have long favored anyway. To the extent that Trump has a different view from “normal” Republicans, it’s that he takes their claims of endemic Democratic voter fraud (especially by Black voters) at face value.

The proper way to understand Trump’s threat to the system is not as an idiosyncratic onetime emergency but as an especially gross iteration of his party’s long-standing evolution into authoritarianism. Christian Vanderbrouk, a veteran of the George W. Bush administration, laments that the GOP’s “retreat from even attempting to secure a popular majority in favor of using the geographic leverage created by the Electoral College has resulted in a growing suspicion of majoritarianism itself.”

Trump has turned the rhetoric of banana republicanism — calling for arresting his enemies and overturning lost elections — into common party talking points. And while he has lacked the means and the opportunity to put into practice the ideas he expressed, those ideas will continue to spread, and one day the opportunity will come.

UPDATE: Arizona Attorney General Mark Brnovich has filed a Motion For Leave to File an Amicus Brief which does not read as if Arizona supports the position of Texas to disenfranchise millions of voters in four states because it is unhappy with the election result. This appears to be a loyalty test of fealty to “Dear Leader” among Republican AG’s to file amicus briefs in this ridiculous case. Sad and disgusting.

UPDATE: Nina Totenberg reports, Trump Asks Supreme Court To Let Him Join Widely Scorned Texas Election Lawsuit (excerpt):

Just how little legal support there is for the lawsuit is evidenced by who signed the briefs asking the high court to intervene. Trump’s brief was not signed by acting Solicitor General Jeffrey Wall or any other Justice Department official. Rather, the brief was signed by John Eastman, a conservative law professor at Chapman University. (A Trump campaign statement said the president intervened “in his personal capacity as candidate for re-election.”)

Yeah, about that:

So the John Eastman brief for Trump was ghost-written by the guy who drafted Texas's brief that the Eastman brief supports?
Oh my.
The Supreme Court will not appreciate the sock-puppetry, especially in a case with these stakes. https://t.co/U8AQZm0aeq

— Rick Hasen (@rickhasen) December 9, 2020

The Texas brief was not signed by the state’s solicitor general, Kyle Hawkins. Paxton, who signed the Texas brief, remains under indictment over securities fraud and is also facing an FBI investigation on bribery and abuse of office allegations.

All of the briefs filed so far are in the form of a motion seeking permission to sue the states in the Supreme Court. As legal experts have noted, it is unclear what legal standing Trump, Texas or the 17 states supporting their move have for challenging the results of elections in other states.

Moreover, with the Electoral College slated to meet next week, this legal action amounts to little more than an eleventh hour Hail Mary pass. It is more like trying to stop the game clock from ticking when all the players are walking off the field.