Filed by Texas state attorney generalKen Paxton on December 8, 2020, underthe Supreme Court's original jurisdiction, the lawsuit alleged that Georgia, Michigan, Pennsylvania, and Wisconsin violated the United States Constitution by changing election procedures through non-legislative means – thus violating theindependent state legislature theory. The suit sought to temporarily withhold the certified vote count from these four states prior to theElectoral College vote on December 14. The suit was filed afterover 60 lawsuits arising fromdisputes over the election results filed by Trump and the Republican Party had failed in numerous state and federal courts.
The suit had been drafted by a team of lawyers with ties to the Trump presidential campaign. Paxton agreed to file the case after other state attorneys general declined to do so. Thesolicitor general of TexasKyle D. Hawkins objected to the suit and refused to let his name be added. Paxton hiredLawrence J. Joseph, who had helped draft the suit, as special counsel to assist with the suit.[1]
Within one day of Texas's filing, Trump, over 100 Republican representatives, and 18 Republican state attorneys general filed motions to support the case.[2][3] Trump referred to this case as "the big one" of the election-challenging lawsuits.[4] Attorneys general for the defendant states, joined in briefs submitted by their counterparts from twenty other states, two territories, and the District of Columbia,[5] urged the Court to refuse the case, with Pennsylvania's brief calling it a "seditious abuse of the judicial process".[6] Legal experts argued that the case was not likely to be heard and not likely to succeed if it did, and that it was thus a"Hail Mary" action.[7][8][9]
The Supreme Court issued orders on December 11, dismissing the case on the basis that Texas lackedstanding underArticle III of the Constitution to challenge the results of the election held by another state.[10][11]
Several states changed their voting laws prior to the2020 United States presidential election to makepostal voting easier, due to fears that in-person voting would expose people toCOVID-19. Legal challenges to the changes were raised across the country. A number of these cases involved voting regulations that were altered by states' executive branches and not by state legislatures. InTexas v. Pennsylvania, Texas claimed that such alterations violatedArticle Two of the United States Constitution.[12]
The initial tallies of votes, completed within the week of election day, showed thatJoe Biden had won sufficient votes in theElectoral College to secure the presidency over incumbentDonald Trump. Trump and theRepublican National Committee (RNC) launched many lawsuits againstswing states challenging their vote tallies, particularly in states that had voted for Trump in the2016 United States presidential election but had turned to Biden in 2020, such as Pennsylvania, Michigan, Wisconsin, and Georgia. Most of the cases raised by Trump and the RNC were dismissed on procedural grounds or rejected on substantive grounds in the courts and did not affect the projected Electoral College result.[13]PolitiFact noted that the forces behind reversing the election had by this point "lost dozens of election lawsuits."[14]
Before and after the election, Trump stated his expectation that the Supreme Court would determine the outcome. After the election, his legal team sought to bring a case before the Court, on which conservative justices—including three appointed by Trump—held a 6–3 majority.[15]
The case was filed on December 8, 2020, directly with the Supreme Court as it holdsoriginal jurisdiction over disputes between states.[16][17][18] Such cases are infrequent: there were 123 "original jurisdiction" cases from 1789 to 1959.[19] Original jurisdiction cases are immediately docketed pursuant to Rule 17 once the plaintiff submits itsmotion for leave to file and pays its docket fees.[20][a] Because the suit requested expedited consideration, the Court set a deadline at 3:00 p.m. on December 10 for the four defendant states to respond.[19][21] Whereas a typical case submitted through a writ ofcertiorari requires only four justices to accept to be certified by the Supreme Court, this case would have required five justices.[22]
The suit was filed by Texas attorney generalKen Paxton. It claimed that Georgia, Michigan, Pennsylvania and Wisconsin violated the Constitution by changing their election procedures to limit the spread of COVID-19.[23] The case was filed on the same day as the "safe harbor" threshold, beyond whichCongress must accept certified results from states ahead of the Electoral College's official vote on December 14, 2020.[18][16] The suit alleged that the four states "ignor[ed] statutory requirements as to how [mail-in ballots] were received, evaluated and counted".[24] It further argued that electoral processes in the four defendant states "suffered from significant and unconstitutional irregularities", and therefore that it was not clear who "legitimately won the 2020 election".[25]
In the lawsuit, Texas alleged that the defendant states, by changing their election processes, violated three clauses of the Constitution: the Electors Clause (ArticleII, Section1, Clause2), theEqual Protection Clause, and theDue Process Clause.[26][27] In particular, it argued the Constitution requires changes to electoral procedures to be made only by state legislatures, and not by executives such as secretaries of state.[28] Accordingly, it argued, changes to election procedures made by executive action, and not by alterations to state law, rendered election results constitutionally infirm.[28]
Texas argued it hadstanding to sue to prevent its votes from becoming "diluted".[29] Texas instead alleged that "fraud becomes undetectable" because "unlawful actions of election officials effectively destroy the evidence". Whether "voters committed fraud" was not the "constitutional issue" in this case, according to Texas. Therefore, Texas declared that it did not need to "prove" fraud.[30]
Texas sought relief by requesting the Supreme Court block those four states from voting in the electoral college and extend the deadline by which states must submit their certified vote.[23]
Texas, in its December 11 response to the defendant states, stated "Defendant States do not seriously address grave issues that Texas raises, choosing to hide behind other court venues and decisions in which Texas could not participate and to mischaracterize both the relief that Texas seeks and the justification for that relief."[31] In an interview, Paxton further argued that "the only place we can file is the Supreme Court, and we did what we did appropriately, so to call it 'seditious' is really ridiculous."[32] In response to commentators who said the action was aHail Mary, Paxton said, "Unless you throw the pass, you can't complete it."[32]
States with attorneys general filing in support of Texas
States with attorneys general filing in support of the Defendant states. The District of Columbia which is a federal district also filed in support as did Guam and the U.S. Virgin Islands, two U.S. Territories.
States with attorneys general filing brief in support of neither side
State with attorney general filing in support of Texas, but the governor filing in support of the Defendant states.
Attorneys general of seventeen additional states filed a joint brief on December 9 supporting Texas.[33][19][34]
On the same day, Trump filed a motion tointervene in his personal capacity, thereby attempting to join the case as a plaintiff.[35] Trump's brief was filed byChapman University School of Law professorJohn C. Eastman, who in August 2020authored an article published inNewsweek questioningKamala Harris's eligibility for the position of vice president.[36] On social media, the president referred to the case as "the big one".[37] Over 120 Republican members of the House of Representatives filed anamicus brief in support of the suit, including leaderKevin McCarthy and his deputySteve Scalise.[38][39][40]106 members of the House initially signed on to the lawsuit in support of the plaintiff.[41] 20 additional members of the House signed on to the lawsuit in support of the plaintiff before it was dismissed.[42]
Later on December 10, attorneys general of six states that had already responded in anamicus brief, Arkansas, Utah, Louisiana, Missouri, Mississippi and South Carolina, petitioned to the Supreme Court to let them join Texas as a plaintiff in the case.[43] This effort was led by Missouri Attorney GeneralEric Schmitt.[43]
Anamicus curiae brief on the side of the defendants was filed by a group of former Republican office holders and officials.[44]
The defendant states responded on December 10, urging the Court to reject the case. Pennsylvania's reply called the suit a "seditious abuse of the judicial process".[6] The states urged that the justices "send a clear and unmistakable signal that such abuse must never be replicated".[6]
Attorneys general of the District of Columbia, Guam, the Virgin Islands, and 20 states filed a brief in support of the defendant states the same day:[5][45]
List of attorneys general supporting the defendants
AlthoughMontana attorney generalTim Fox participated in the joint brief filed on December 9 supporting Texas,[34] outgoing Montana governorSteve Bullock filed a separate brief on December 10 in support of the defendants.[46]
On December 10,Ohio attorney generalDave Yost filed a motion supporting neither side but stated that "the [s]tates need this Court to decide, at the earliest available opportunity, the question whether the Electors Clause permits state courts (and state executive officials) to alter the rules by which presidential elections are conducted."[47] Yost also stated Ohio could not support Texas's request for relief because Ohio's position is that state legislatures' power over elections should not be overridden by federal courts.[27] Arizona also filed a brief on jurisdiction but supporting neither party.[5]
The suit was criticized by legal experts and called "outlandish".[48][18][49]University of Texas School of Law law professorStephen I. Vladeck called the suit the "craziest lawsuit filed to purportedly challenge the election". Election law expertRick Hasen characterized the lawsuit as a "press release masquerading as a lawsuit" and "the dumbest case I've ever seen filed on an emergency basis at the Supreme Court."[50][49]Edward Foley, director of the election law program atOhio State University, urged the court to ignore the case and refrain from interfering in the election.[17]
Another Harvard Law professor,Noah Feldman, characterized the lawsuit as acoup attempt by Republicans to overturn the results of the election.[51]
SenatorTed Cruz, who previously served asSolicitor General of Texas and argued several cases before the Court while serving in that capacity, accepted Trump's request to argue the case should the Court hear it.[52]
Legal experts also did not expect the Supreme Court to certify the case, given its reluctance to hear post-election challenges. On the same day as Texas's filing, the Court refused to hear arguments in another post-election challenge,Kelly v. Pennsylvania, without any dissents.[22][53] The defendants also argued that the legal principle oflaches, which may bar an action if it is filed too late, is grounds for dismissing Texas's claim.[31][54][b]
Republican Texas governorGreg Abbott signaled his support for the case, saying the case "tries to accelerate the process, providing certainty and clarity about the entire election process. The United States of America needs that."[23]
President Trump retweeted several tweets that expressed support for the suit.[16] On December9, he promised tointervene in the suit,[55] and filed a motion to do so the same day,[35][56][57] thereby attempting to join the case as a plaintiff. On December 10, he tweeted "the Supreme Court has a chance to save our Country from the greatest Election abuse in the history of the United States."[58] On December 11 he tweeted, "I just want to stop the world from killing itself! ... Now that the Biden Administration will be a scandal plagued mess for years to come, it is much easier for the Supreme Court of the United States to follow the Constitution and do what everybody knows has to be done."[4]
Republican senatorsDavid Perdue andKelly Loeffler,bothinvolved in close runoff races in Georgia, voiced support for the suit.[59] In a tweet, Republican Missouri attorney generalEric Schmitt stated his support for the suit, promising to "lead the effort in support of Texas's #SCOTUS filing today".[60] On Twitter, Republican Arkansas attorney generalLeslie Rutledge stated she would legally support the motion.[61] Republican Louisiana attorney generalJeff Landry also supported the complaint.[62]
In response to an email to every Republican member of theHouse of Representatives from RepresentativeMike Johnson of Louisiana, 125 Republicans joined him to sign anamicus brief supporting the suit.[63][64] The number represented a clear majority of the Republican caucus in the House.[4]Politico referred to the large number of GOP House members supporting the suit as "jaw-dropping".[65] Republican members of the Senate, on the other hand, were much less likely to speak in favor of the suit, reflecting their different temperaments and political imperatives.[65]
The office of Republican Georgia attorney generalChris Carr also criticized the suit and Paxton. On December8, Carr's spokeswoman said that Paxton was "constitutionally, legally[,] and factually wrong about Georgia".[49][24] Georgia's deputy secretary of state Jordan Fuchs denounced the suit as "false and irresponsible".[18] Trump warned Carr to not rally other Republican officials in opposition to the suit, and the Republican majority in theGeorgia State Senate expressed their approval for the filing.[66][49][24]
Pennsylvania attorney generalJosh Shapiro (pictured in 2019) criticized the suit.
Democratic Michigan attorney generalDana Nessel criticized the suit, labelling it a "publicity stunt... beneath the dignity" of the Texas attorney general office and saying "[t]he erosion of confidence in our democratic system isn't attributable to the good people of Michigan, Wisconsin, Georgia[,] or Pennsylvania but rather to partisan officials, like Mr.Paxton, who place loyalty to a person over loyalty to their country."[16] Wisconsin Attorney GeneralJosh Kaul called the case "genuinely embarrassing".[18] Pennsylvania attorney generalJosh Shapiro stated that "[t]hese continued attacks on our fair and free election system are beyond meritless, beyond reckless—they are a scheme by the President of the United States and some in the Republican party to disregard the will of the people—and name their own victors."[29]
Attorney andLincoln Project founderGeorge Conway called the lawsuit the "most insane thing yet".[67] Former Federal Elections CommissionerHans von Spakovsky said, "By almost any measure, this is the legal equivalent of a Hail Mary pass."[8]
Chip Roy, a Republican Texas congressman and former chief of staff to Texas senator Ted Cruz, characterized the suit as "a dangerous violation offederalism [that] sets a precedent to have one state asking federal courts to police the voting procedures of other states".[68] Republican Texas senator and former Texas Supreme Court justiceJohn Cornyn said he was unable "to understand the legal theory" behind the suit.[69]
Emails[70] from Florida attorney generalAshley Moody's office revealed that lawyers in the office ridiculed the lawsuit as "batshit insane" and "weird," and speculated about Paxton's motivations for filing it.
GovernorGary Herbert and Governor-electSpencer Cox of Utah, both Republicans, denounced Republican Utah state attorney generalSean Reyes's decision to join the amicus brief in support of the lawsuit.[71] Several other states also saw division among Republicans about whether coming out in favor of the suit was wise.[58] TheAssociated Press wrote that the action "has quickly become a conservativelitmus test."[58]
Michael Steele, formerly the chair of theRepublican National Committee, called Republican House members' decision to join the suit "an offense to the Constitution" that would "leave[] an indelible stain" on their "political skin".[72]Jeb Bush opined on the suit: "This is crazy. It will be killed on arrival".[73]
Texas solicitor generalKyle Hawkins, who normally would speak on behalf of the state in matters before the Supreme Court, was not listed on the suit.[43]
The lawsuit included adeclaration from economistCharles Cicchetti, who claimed that his statistical analysis showed that there was a less than one-in-one-quadrillion chance of Biden's having won any of the states in question. Cicchetti's analysis was widely criticized,[74] since it assumed that voters behaved the same in 2020 as they had in 2016[75] and because it assumed that vote tallying patterns were random over time. In reality, Biden was a different candidate thanHillary Clinton had been in 2016, and the marked shift of early Republican vote counts to later Democratic votes counts had been anticipated well in advance, because several battleground states had forbidden mail-in ballots from being counted earlier; mail-in ballots favored Biden in part because Trump had long attempted to discredit the reliability of mail-in voting.[6]
Writing atPolitiFact, Eric Litke described the analysis as "wildly illogical", citing professors of political science who described the analysis as "ludicrous" and "statistical incompetence", with one wrong assumption being that "votes are all independently and randomly distributed".[76] AtThe Volokh Conspiracy,David Post described Cicchetti's analysis as "idiotic" because it was based on two blatantly false assumptions: (1) that voters' preferences had not changed since 2016, and (2) that party preferences did not differ between mail-in and in-person voters. Post stated that Paxton's use of Cicchetti's work was "unethical" because Paxton had not mentioned Cicchetti's key assumptions.[77] AtThe Washington Post, Philip Bump said that the analysis in the lawsuit was "utterly ridiculous", noting that the 2016 results could not be extrapolated to 2020, because Biden was more popular than Clinton and because voters had become more polarized. Bump also wrote that vote-counting was not "homogeneous", with the "blue shift" phenomenon being entirely expected due to mail-in ballots favoring Biden.[78]
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.[11][83]
JusticeAlito, joined by JusticeThomas, disagreed with the ruling denying leave to file a bill of complaint, but did not otherwise find for the plaintiffs. He wrote that the Court is duty-bound to hear the case, referencing Thomas's dissent inArizona v. California, 589 U. S. ___ (Feb. 24, 2020):
In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within ouroriginal jurisdiction... 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.[11]
After the Court declined to hear the case,Allen West, then-chairman of theRepublican Party of Texas, suggested that "law-abiding states should bond together and form a Union of states that will abide by the constitution".[84] The statement was criticized by Illinois RepublicanAdam Kinzinger, saying the call forsecession was dangerous.The Lincoln Project'sGeorge Conway andNational Review editorRich Lowry also criticized West's remarks, stating they were unrepresentative of the "Party of Lincoln".[85]
President Trump harshly criticized the Court's decision, saying "This is a great and disgraceful miscarriage of justice. The people of the United States were cheated, and our Country disgraced. Never even given our day in Court!"[86][87] White House press secretaryKayleigh McEnany echoed the notion that the case was never given a chance, saying the justices "hid behind procedure ... There's no way to say it other than they dodged."[88] Paxton, for his part, said the decision was "unfortunate".[89]
The Biden campaign said of the ruling: "The Supreme Court has decisively and speedily rejected the latest of Donald Trump and his allies' attacks on the democratic process. This is no surprise—dozens of judges, election officials from both parties, and Trump's own attorney general have dismissed his baseless attempts to deny that he lost the election."[90]
House speakerNancy Pelosi issued a statement that "The Court has rightly dismissed out of hand the extreme, unlawful and undemocratic GOP lawsuit to overturn the will of millions of American voters" and admonished that "Republicans must once and for all end their election subversion—immediately." Additionally she reprimanded House members who supported the lawsuit: "The 126 Republican Members that signed onto this lawsuit brought dishonor to the House. Instead of upholding their oath to support and defend the Constitution, they chose to subvert the Constitution and undermine public trust in our sacred democratic institutions."[91][92]
New Jersey representativeBill Pascrell, citing section three of the14th Amendment, called for Pelosi to not seat Republicans who signed theamicus curiae brief supporting the suit. This proposal would have applied to nearly two-thirds of the Republican representatives of the incoming117th United States Congress. Pascrell stated, "The text of the 14th Amendment expressly forbids Members of Congress from engaging in rebellion against the United States. Trying to overturn a democratic election and install a dictator seems like a pretty clear example of that."[93]
^Black's Law Dictionary defines laches as, among other things, "a want of activity and diligence in making a claim or moving for the enforcement of a right (particularly in equity) which will afford ground for presuming against it, or for refusing relief, where that is discretionary with the court." SeeBlack, Henry Campbell (1910).Black's Law Dictionary. Saint Paul, Minnesota:West. 692 – viaWikisource.LACHES. Negligence, consisting in the omission of something which a party might do, and might reasonably be expected to do, towards the vindication or enforcement of his rights. The word is generally the synonym of "remissness", "dilatoriness", "unreasonable or unexcused delay", the opposite of "vigilance", and means a want of activity and diligence in making a claim or moving for the enforcement of a right (particularly in equity) which will afford ground for presuming against it, or for refusing relief, where that is discretionary with the court. [scan]
^abLarson, Erik; Stohr, Greg (December 8, 2020)."Trump Fans Embrace Texas Suit as Last Hope to Flip Election".Bloomberg News.Archived from the original on December 9, 2020. RetrievedDecember 12, 2020.Paxton claims the U.S. Constitution only grants state legislatures the authority to make changes to election laws, and officials like secretaries of state who expanded mail-in voting in response to the coronavirus pandemic largely did so illegally. The Texas suit also says those states violated the equal protection clause by allowing Democratic-leaning counties to restrict Republican poll-watchers or accept ballots with minor errors.
2020 U.S. presidential election
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