Rudy Giuliani, who has been leading the Trump campaign's legal challenge to Joe Biden's election, says the vast criminal conspiracy that supposedly denied the president his rightful victory is "easily provable." Yet he and other Trump supporters have not come close to proving it in court, where they have either failed to present credible evidence or failed even to allege the sort of massive fraud that could have changed the outcome of the election. Trump's motion to intervene in Texas v. Pennsylvania, a last-ditch effort to prevent Biden from taking office, continues that pattern.
Texas Attorney General Ken Paxton is asking the Supreme Court to rule that Pennsylvania, Georgia, Michigan, and Wisconsin violated the Constitution by changing election procedures without authorization from their state legislatures. Seeking to join that lawsuit, Trump attorney John Eastman acknowledges the lack of evidence to support the president's conspiracy theories.
"Despite the chaos of election night and the days which followed, the media has consistently proclaimed that no widespread voter fraud has been proven," Eastman writes. "But this observation misses the point. The constitutional issue is not whether voters committed fraud but whether state officials violated the law by systematically loosening the measures for ballot integrity so that fraud becomes undetectable."
According to this account, the scheme to fraudulently anoint Biden as the president-elect, far from being "easily provable," was so clever that it was "undetectable." That argument completely contradicts everything that Trump, Giuliani, and pro-Trump lawyers such as Sidney Powell have been saying for weeks.
They claim the anti-Trump plot left many obvious clues, including statistically impossible vote tallies, "thousands and thousands" of clearly phony absentee ballots delivered in plain sight, illegal directives from election officials, and blatant, pervasive irregularities in accepting and processing votes. "The evidence is overwhelming," Trump insisted during the 46-minute rant he posted on Facebook last week. "Everyone is saying, 'Wow, the evidence.'" But state and federal judges have not been wowed, and Trump's own attorney general says the Justice Department has not seen evidence of "fraud on a scale that could have effected a different outcome in the election."
Never mind all that, Eastman says. The real problem is that state officials illegally changed the rules in ways that made any conspiracy to steal the election impossible to document. "The unlawful actions of election officials effectively destroy the evidence by which the fraud may be detected," he writes.
In response to a lawsuit by the Democratic Party of Georgia, for example, the Republican secretary of state, Brad Raffensperger, agreed to change the state's signature verification procedure for absentee ballots. Under the settlement agreement, Eastman says, ballot signatures were compared to signatures on ballot applications but not to signatures on voter registration cards. "Likely as a result of the Settlement requiring that these statutory requirements be ignored," he writes, "the invalidity rate of absentee ballots dropped from the historic average of about three percent to a miniscule rejection rate of .37%, with the result that approximately 40,000 ballots were counted that, based on historical rejection rates, should not have been counted."
That estimate conveniently exceeds Biden's 12,000-vote lead in Georgia. Yet there is no evidence that anything like 40,000 ballots were fraudulent. Eastman nevertheless figures the theoretical possibility of fraud is enough to overturn Georgia's election results. "It is not necessary for the Plaintiff in Intervention to prove that fraud occurred," he writes. "It is only necessary to demonstrate that the elections in the defendant States materially deviated from the 'manner' of choosing electors established by their respective state Legislatures."
When officials like Raffensperger flout the rules established by state election law, Eastman argues, they violate the U.S. Constitution's Electors Clause, which "assigns plenary power for determining the 'manner' of choosing presidential electors to the Legislature of the State." That is also the main thrust of Paxton's argument.
As Case Western Reserve law professor Jonathan Adler notes, that theory seems to contradict the premise of another pro-Trump lawsuit. In that case, Rep. Mike Kelly (R–Pa.) argued that Pennsylvania's legislature violated the state constitution when it allowed people to vote by mail without any special justification. After the Pennsylvania Supreme Court rejected Kelly's lawsuit, he unsuccessfully asked the U.S. Supreme Court to intervene, arguing that the Pennsylvania legislature's alleged violation of the state constitution was also a violation of the U.S. Constitution. Yet according to Paxton and Eastman, Pennsylvania's legislature has "plenary power" to decide how presidential electors will be chosen.
"Whereas other suits complain about state election administrators or state courts altering state election law without legislative approval," Adler notes, Kelly's suit "claims that the constitutional problem is that Pennsylvania state courts failed to overturn changes to state election law made by the legislature. It is almost as if the theories are not based on principled consideration of the underlying constitutional questions, but are instead constructed to ensure the desired outcome."
If one assumes that Paxton and Eastman are right about the Electors Clause (which implies that Kelly was wrong), that hardly means their case will get a friendly reception at the Supreme Court. "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," Rick Hasen, an election law expert at the University of California, Irvine, wrote after Paxton filed his case. "This is a press release masquerading as a lawsuit."
Hasen summarizes the problems with Paxton's case: "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; [and] it's too late for the Supreme Court to grant a remedy even if the claims were meritorious (they are not)."
Leaving aside the merits of Eastman's legal arguments, the most audacious part of his motion may be his preposterous claim that the president is trying to restore public confidence in the election system. "A recent poll by the reputable Rasmussen polling firm indicates that 47% of all Americans (including 75% of Republicans and 30% of Democrats) believe that it is 'likely' or 'very likely' the election was stolen from the current incumbent President," he writes. "The fact that nearly half of the country believes the election was stolen should come as no surprise….When election officials conduct elections in a manner that contravenes of the Constitution of the United States, grave harm is done not just to the candidates on the ballot but to the citizenry's faith in the election process itself."
According to Eastman, renegade election officials are responsible for undermining that faith. In reality, the blame lies with a president who for a month has been making wild claims of election fraud that even Eastman admits he cannot back up.