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Earlier this week, Texas Attorney General Ken Paxton filed a lawsuit in the U.S. Court against the battleground states of Georgia, Michigan, Pennsylvania, and Wisconsin for unconstitutional changes they made to their mail-in voting procedures. Since then, 17 states have joined Texas in an amicus brief, while Arizona Attorney General Mark Brnovich filed a separate brief in support of the lawsuit.
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Summary
On December 8, Texas Attorney General Ken Paxton filed a lawsuit claiming that the four battleground states of Georgia, Pennsylvania, Michigan, and Wisconsin “violated statutes enacted by their duly elected legislatures” which hindered the electoral process. Now 18 other states have joined the lawsuit: Missouri, Alabama, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia, and Arizona. On Thursday, the Pennsylvania House of Representatives filed a brief to provide context and help the Court analyze the Pennsylvania-specific issues raised by the Texas suit.
Meanwhile, President Trump in his personal capacity has joined the case and has asked Sen. Ted Cruz (R-Texas) to argue the case.
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The amicus brief filed by the majority of states says, “States have a strong interest in ensuring that the votes of their own citizens are not diluted by the unconstitutional administration of elections in other States.”
Texas originally filed suit earlier this week, claiming,
“Georgia, Michigan, Pennsylvania and Wisconsin destroyed that trust and compromised the security and integrity of the 2020 election. The states violated statutes enacted by their duly elected legislatures, thereby violating the Constitution. By ignoring both state and federal law, these states have not only tainted the integrity of their own citizens’ vote, but of Texas and every other state that held lawful elections.”
A statement on the Texas Attorney General’s website says,
“The four states exploited the COVID-19 pandemic to justify ignoring federal and state election laws and unlawfully enacting last-minute changes, thus skewing the results of the 2020 General Election. The battleground states flooded their people with unlawful ballot applications and ballots while ignoring statutory requirements as to how they were received, evaluated and counted.”
The statement also claims that these states unconstitutionally selected their electors for the Electoral College.
President Trump also filed a motion to intervene in the lawsuit. “Donald J. Trump, in his personal capacity as candidate for re-election as President of the United States, today moved to intervene in the Texas v. Pennsylvania et. al. action at the United States Supreme Court,” the Trump campaign announced in a statement. “The President intervened because his rights as a candidate are affected by the Defendant States’ failure to follow and enforce state elections laws during the 2020 election.”
Attorney John Eastman will represent Trump. In a statement he said, “I’m honored that the President asked me to represent him in this matter. I think his intervention in this case strengthens an already very strong original action taken by the state of Texas.”
The New York Times wrote that Trump has asked Cruz to argue the case in front of the Supreme Court and that Cruz has agreed. Cruz argued eight cases before the Supreme Court while serving as Solicitor General of Texas, and one as a private attorney.
In response, more than 25 other states and U.S. territories have joined with Pennsylvania and other battleground states and filed their own brief in opposition to the Texas lawsuit.
Critics claim that this lawsuit is meritless and cite prior defeats in court. Rebecca Green, a professor at William and Mary Law School, said, “It is so outlandish. It is totally contrary to how our Constitution mandates that elections be run. The idea that a state could complain about another state’s processes is just absurd.”
University of Washington law professor Lisa Marshall Manheim said the suit was “legally incoherent, factually untethered and based on theories of remedy that fundamentally misunderstand the electoral process.”
Others claim that Paxton has his own motives as he has faced charges of bribery and abuse of his office. Jonathan Adler, a professor at Case Western Reserve University School of Law, said, “It is fairly clear that one way you get a pardon is you rally to the president’s defense.”
Falkirk Takeaway
While it seems unlikely that the Supreme Court would be willing to throw out so many votes, it is notable that so many state attorney generals believe that this lawsuit is warranted. The Trump campaign has experienced many legal defeats but continues to claim that Trump won the election. It seems many states believe the claims have merit. If the Trump campaign and other parties have uncovered enough evidence to prove widespread fraud or can show that state election officers changed voting procedures in violation of their own state laws, an adept litigator like Cruz should be able to effectively make their case.
