Election 2020

Texas Is Attempting to Sue Georgia, Michigan, Pennsylvania, and Wisconsin Over the 2020 Election

Embattled Attorney General Ken Paxton is the latest to ask the Supreme Court to intervene in the 2020 Presidential election results.

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Texas Attorney General Ken Paxton is asking the Supreme Court to intervene in the 2020 Presidential election. Yet rather than seek SCOTUS involvement in pre-existing election cases, such as those filed by Pennsylvania legislators, the Trump campaign, or others, AG Paxton is initiating a suit of his own attempting to invoke the Supreme Court's original jurisdiction. This suit is, without question, among the most audacious legal filings of the 2020 Presidential election, and it is quite unlikely the Supreme Court will respond favorably to Texas's plea.

In this case, Texas AG Paxton has filed suit against four states–Georgia, Michigan, Pennsylvania and Wisconsin–alleging that various changes to election rules and procedures in those states, combined with alleged fraud–"tainted" the election results in those states. Because this case is styled as a suit filed by one state directly against other states, the suit invokes the Supreme Court's original jurisdiction (as opposed to the Court's appellate jurisdiction). Accordingly, AG Paxton filed a motion for leave to file a Bill of Complaint, which is the way that a state asks the Supreme Court to hear a case brought directly against another state under its original jurisdiction, bypassing the need to first bring the case in a lower court.

The full filing, which also includes a Bill of Complaint, a Brief in support of the Motion to Leave, a Motion for Expedited Consideration, and a Motion for a Preliminary Injunction and Temporary Restraining Order, raises the full panoply of constitutional and other claims that we have seen in 2020 Presidential election litigation thus far, and seeks to turn alleged election irregularities and statistical anomalies into constitutional violations. Only three attorneys are listed on the filings: AG Paxton, recently appointed First Assistant AG Brent Webster, and D.C. attorney Lawrence J. Joseph, who is listed as "Special Counsel" to the AG. [As noted here, there has been a great deal of turmoil in the Texas AG's office, leading to substantial turnover within the office.] Texas Solicitor General Kyle Hawkins is conspicuously absent. (Perhaps Senator Ted Cruz will volunteer to argue in the unlikely event the Supreme Court takes the case, as he has in other election litigation.)

Texas alleges that the four defendant states violated their own laws in making changes to their election procedures and violated the constitution by authorizing or allowing differential treatment of different sets of voters within their states. Because these claims would not be enough, by themselves, to overturn the Electoral College results, the complaint seeks to shoehorn election fraud claims into the argument by alleging "voting irregularities . . . that would be consistent with the unconstitutional relaxation of ballot-integrity protections in those States' election laws," and repeats a number of unfounded or unsubstantiated charges relating to missing USB drives and statistical disparities in election results. Failing to prevent such irregularities, Texas claims, contributed to the constitutional violations alleged. Specifically, Texas claims that by "taking—or allowing—non-legislative actions to change the election rules that would govern the appointment of presidential electors," the defendant states have violated the Electors Clause, the Equal Protection Clause, and the Due Process Clause. The filings further ask the Supreme Court to prevent the defendant states from appointing electors based upon certified election returns and require the defendant state legislatures to appoint electors directly.

Article III of the Constitution provides the Supreme Court with jurisdiction to hear cases in which one state sues another in its original jurisdiction, but it does not always do so. Under current practice, states ask the Court for permission to file such suits—hence the Motion for Leave—and the Court does not always oblige. So, for instance, when Nebraska and Oklahoma sought to sue Colorado over the latter's decision to legalize marijuana, the Supreme Court refused to hear the case.

Here, Texas is not only asking the Supreme Court to hear the case, it is also asking for expedited consideration and extraordinary emergency relief, in the form of injunctions barring the defendant states from relying upon the election results to appoint electors and authorizing "pursuant to the Court's remedial authority, the Defendant States to conduct a special election to appoint presidential electors." In effect, the suit is asking the U.S. Supreme Court to supervise the Presidential election in the four defendant states.

Setting aside the merits of the case for a moment, the Texas filing raises a range or jurisdictional questions. Among other things Texas has to overcome a range of obstacles, including standing and the political question doctrine, to press this suit. Texas claims it will be harmed if the allegedly unconstitutional actions within the defendant states determine the presidential election. Yet the Constitution provides that Congress is the ultimate judge of the Electoral College results. This is yet another reason why it is hard to see the Supreme Court accepting Texas's plea. Further, the standards for the sort of emergency relief Texas seeks are quite high–among other things, the party seeking such relief is supposed to show a likelihood of success on the merits–so it seems likely the Court will deny the various motions, hopefully without too much delay.

 

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  1. Seems like the EPC logic requires the remedy to be a national popular election!

    1. Well, if we had one, the curtain would have rung down on this circus weeks ago.

      1. Perhaps – but the vote counts would have been quite different also as candidates would have ran their campaigns completely differently and voters would have behaved differently if the “popular vote” was the criteria.

        I, for example, live in a large deep red state so my POTUS vote doesn’t matter. Therefore, I can vote for a third party w/o guilt (and do). If the popular vote were the issue, I would have had to made a decision between Trump and Biden/Harris.

        Trump is horrible President although I tend to agree with some of his general policies. Another four years of Trump would not be a disaster as little “spillage” of his policies would last long after he was termed out.

        Biden is much more “presidential” than Trump (i.e., central casting would pick him before Trump). However, I disagree with most of his policies (to the extent he sticks to one for more than a few months) and, if implemented, those policies would result in social programs that are both fiscally expensive and socially expensive (the latter by creating yet more government dependency and reducing personal accountability). These social programs, like Medicare, Social Security, and the Great Society programs are almost impossible to eliminate (except by collapse of our system of governance) once instituted.

        So it’s likely that in a popular vote scenario Trump would have gotten at least one more vote.

        As well, in a popular vote scenario, Trump would have actively campaigned in distinctly red states and Biden in distinctly blue states.

        The changes in voter behavior and campaign strategy probably wouldn’t have flipped this election if it was determined by popular vote, but I think it would have been much closer.

        1. BadLib, I disagree with your analysis, but even if you’re right, my point is that no matter who won the popular vote, it would have been all over within a day or two of the election. Rather than have state by state skirmishes over a period of weeks, there would have been a final number available in a relatively brief period of time. So whether you would have personally liked the results or not, at least we would have had finality.

          1. I completely disagree with this. In a close popular vote election, both sides would be nitpicking every single voting precinct in the country, because every single one of them could matter in the big picture. Heck, as Team Trump is showing, it doesn’t even need to be a particularly close election. On the plus side, it might encourage states like NY and CA to figure out a way to count their votes in hours, rather than weeks.

            1. And when was the last time we actually had a close popular vote? Maybe 1968? Compared to the three elections out of the last five in which having an electoral college created a complete circus?

              Whatever the arguments in favor of the electoral college may be, our presidential elections would be a whole lot more tranquil without it.

              1. Yes, but as Ridgeway said, the people filing the lawsuits are doing so even where the results aren’t that close. So, your belief that the “circus” would have been over in a day or two in a direct popular vote system may simply underestimate the people running the circus.

              2. How quickly we forget 2000.

        2. “As well, in a popular vote scenario, Trump would have actively campaigned in distinctly red states and Biden in distinctly blue states.”

          We don’t necessarily know that. Biden might have spent lots of time in Dallas/Houston/Nashville, maybe even Salt Lake City or Oklahoma City. And of course, there is no reason Trump couldn’t campaign heavily in all the Republican parts of California, Illinois , NY, Washington, etc.

          In a national popular vote scenario, there is an advantage to turning out votes wherever you can find them so long as overall it adds up to a win. We’re so used to thinking about our state-by-state model, that we forget it wouldn’t matter for the purposes of campaigning in a national popular vote.

          1. Sorry, you are correct. I inadvertently swapped my “red” and “blue” (they always seem counter intuitive to me) labels for states.

            That passage should have read:

            As well, in a popular vote scenario, Trump would have actively campaigned in distinctly blue states and Biden in distinctly red states.

      2. Interesting. Would you have closed the curtain the night of the voting which has been customarily done because we finish the counting historically on those nights or would you have extended it past the big spikes that occurred at 3 AM.? Also, if you had this curtain, would you have closed it on the impeachment process that lasted 2 years and was discovered to have been initiated by a false dossier generated by Hillary and submitted to the FISA court? Not that it matters really, the SCOTUS has decided to hear the case.

  2. That’s the only interesting thing about this case: why the Supreme Court thinks it has discretion to hear original jurisdiction cases or not. I’ve always been vaguely curious about the legal basis for that approach.

    (I’m not sure if anybody said in Nebraska and Oklahoma v. Colorado, and I can’t be bothered to dig up any other cases. Alito and Thomas dissented last time. Let’s see how many Trump appointees will join them…)

    1. Assuming they have to exercise jurisdiction, the Constitution doesn’t say how they’re supposed to do it. They could just appoint a special master in every original jurisdiction case, instead of just the ones the grant leave to file, to prepare a report and recommendation. If the case is garbage, presumably the special master will tell them. At the very least she might compile a record for them to determine that themselves.

      1. Yes, that’s what I was thinking too. Farming out the hard work is one thing, throwing out the case before you even get to the merits is something else entirely.

    2. The leading case, to my knowledge, is Ohio v. Wyandotte Chemicals Corp., 401 U.S. 483 (1971).

      I do not find it very persuasive.

      1. Like I said above, there is no reason why the Court can’t just exercise its jurisdiction in such a way that addresses the complexities of the case. For instance it could always enter stays until proceedings in other courts or bodies are completed which might resolve some of the issues prior to review.

      2. The State of Ohio filed a motion for leave to file a bill of complaint invoking the Court’s original jurisdiction against defendant companies, incorporated in Michigan, Delaware and Canada, to abate an alleged nuisance resulting in the contamination and pollution of Lake Erie from the dumping of mercury into its tributaries. The Court declines to exercise its jurisdiction in this case since the issues are bottomed on local law that the Ohio courts are competent to consider; several national and international bodies are actively concerned with the pollution problems involved here; and the nature of the case requires the resolution of complex, novel, and technical factual questions that do not implicate important problems of federal law, which are the primary responsibility of the Court.

        …bottomed on?

        1. Fortunately we now have 6 originalists on the Court…

    3. How does Texas overcome the political question doctrine? And I haven´t read the draft complaint, but what is the state´s theory of a distinct and palpable injury for purposes of standing?

      1. Why on earth are you pretending that this is a serious suit rather than just more fundraising grift?

  3. Here’s how Trump can still win . . .

  4. “[I]f any state in the union will declare that it prefers separation with the 1st alternative, to a continuance in union without it, I have no hesitation in saying ‘let us separate.’ I would rather the states should withdraw, which are for unlimited commerce & war, and confederate with those alone which are for peace & agriculture.”

    Thomas Jefferson

    1. Yeah, we kinda changed our minds around 1861.

    2. Civil war wankery is how Republicans come to grips with defeat these days.

      1. You seem to be projecting. I just posted a quote about peace and against war. Then you reveal that your immediate thought response is: “this means war.” Sick.

        1. So true!

          I mean, no one associates M L with civil war wankery.

          Or civil war revisionism.

          Or Lost Cause BS.

          Not M L.

          Certainly not … M L.

        2. Why would I associate a post about secession with civil war? Craaazy.

          1. The point is, you are the one doing the associating, and you falsely imputed it to me.

            If a State wanted to peacefully secede, what would you support?

            A. Peaceful separation.
            B. Kill them.

            1. You forgot C. Peacefully prevent them.

              1. Well, that may or may not be an option. For purposes of the hypothetical, assume it’s not.

                But your comment raises the interesting topic, what kinds of things would you do to peacefully prevent a state from separating if they wanted to?

                Possible answers would fall generally into one of two directions: oppositional, or compromising. Oppositional would certainly occur, and since we are excluding the inevitable non-peaceful actions, peaceful would include everything right up to that point. Agents provocateur would be sent it, information warfare/deceitfulness, blackmail and bribery, and of course lawfare.

                In the other direction would be possible compromises, which depends on the reasons for separation being desired. But there’s a lot of “soft” actions to this apart from any hard policies.

                I’m more interested in this as an intellectual exercise rather than tying it to present-day reality, but here’s Joel Pollak’s perspective on what Biden would do if all of his talk about “unity” were actually genuine. Seems to illustrate the kinds of things that people see as promoting unity or divisiveness.

                “9 Things Joe Biden Would Do If He Were Serious About Unity

                1. Apologize for Nazi slurs. When you cast your opponents as Nazis, you are exposing them to physical danger and social isolation that lasts beyond the campaign. Biden released a video comparing the president to Adolf Hitler, and his supporters to fanatical Germans. He said Trump was like Nazi propagandist Joseph Goebbels. And he launched his campaign with the infamous Charlottesville “very fine people hoax,” falsely claiming Trump supported Neo-Nazis. He stuck with it even when confronted with the truth. . .

                2. Condemn the attacks. Biden has not condemned physical attacks on Trump supporters since the election. . .

                3. Call off the political prosecutions. .

                4. Recognize that Trump is a legitimate president. Biden fueled the feverish conspiracy theories of his party when he supported the idea that Trump had not been properly elected. In May 2019, when a voter in New Hampshire told him that she believed Trump is an “illegitimate president in my mind,” Biden told her: “I absolutely agree.” That was just weeks after Special Counsel Robert Mueller’s report showed that there had been no collusion whatsoever between the Trump campaign and the Russian government. . .

                5. Thank Trump for his achievements. Winston Churchill lost the 1945 election, just weeks after leading Britain to victory over Germany in the Second World War. Though the campaign had been a divisive one, and Churchill was bitter about having lost, his rival delivered a speech in the House of Commons in which he expressed “gratitude and admiration” for Churchill’s leadership. “His place in history is secure,” said Prime Minister Clement Attlee . .

                6. Learn from Trump’s successes. President Trump tried bold approaches to governing that the Beltway establishment said would never work — and he often succeeded. . .

                7. Meet with law enforcement. When Black Lives Matter protests brought riots to the streets of cities across America, Biden blamed the police . .

                8. Commit to repairing our election system..

                9. Stop telling us about a “dark winter.” … Rhetoric about a “dark winter” might be good for an election, but it is the opposite of what leaders should do when they have responsibility. … Unite Americans by emphasizing the positive, and by looking forward.”

                1. When everyone keeps comparing you guys to Nazis, it’s time to take a look in the mirror.

                  I personally have come to the realization that Nazi Germany could happen here. And Trump and his cult followers taught that to me.

                2. I’m more interested in this as an intellectual exercise rather than tying it to present-day reality, but here’s Joel Pollak’s perspective on what Biden would do if all of his talk about “unity” were actually genuine. Seems to illustrate the kinds of things that people see as promoting unity or divisiveness.

                  Obvious troll is obvious. Take that as a reference to you or Pollak, as you wish.

            2. If a State wanted to peacefully secede, what would you support?

              A. Peaceful separation.
              B. Kill them.

              As Prof. Somin keeps explaining, the answer depends on why they want to secede.

              1. Let’s say it’s because they disagree over federal spending/taxation, open borders, right to bear arms, freedom of speech, or any one of the foregoing or something else. Take your pick.

                For which reasons would your answer be “Kill them” ??

      2. Burning stores, looting, and civil unrest appear to the the way Democrats come to terms with their defeat. I wonder which one is better. It’s a tough one.

  5. One way to tell this is a partisan hack job instead of an honest legal argument is that it consistently uses the Limbaughian pejorative “Democrat” as an adjective instead of the correct form “Democratic.” Notably, the RNC’s brief in the partisan gerrymandering case Rucho v. Common Cause correctly used “Democratic

    1. But even the Democratics don’t call themselves “Democratics.”
      Their website is democrats.org, not democratics.org…

      1. Noun versus adjective. Learn the difference.

        I am a Democrat (s. noun)

        We are Democrats (pl. noun)

        The current House is under Democratic control. (s. adj.)

        They are Democratic voters. (pl. adj.)

        1. Right, and that is precisely why Republicans refer to it as “the Democrat party”: Because they don’t think the adjective is accurate.

          If Democrats wanted to refer to the Republican party as “the Republic party”, I suppose I wouldn’t object, fair is fair.

          1. Does this White, male, right-wing blog generate illiterate bigots, or merely attract them?

          2. Brett Bellmore : “Right, and that is precisely why…. (etc)”

            No, Brett. You do it out of childishness. Today’s Right & GOP is the party of juvenile antics. Your entire side is built around (and for) cartoon theatrics. You gave us a buffoon as president merely because you found him an entertaining troll.

            1. No, Brett. You do it out of childishness.

              Correct.

              Not to mention it’s rude as hell to refuse to call people by their preferred name. If Richard tells you he wants to be called “Richard,” and not “Rick,” or “Dick,” or “Richie,” or…it takes an asshole not to respect that.

              1. Agree. You should complain to facebook for removing the term President from Trumps page.

        2. Trump is a Republican.
          The current Senate is under Republican control.

          Note how noun and adjective remain the same. As happens with Libertarian, Communist, Marxist, and other political parties. Hence why the discrepancy here?

          As an aside:
          They are Democratic voters. (pl. adj.)
          They are College Democrats. https://democrats.org/cda/

          Care to explain that one?

          1. Because the party is called the Democratic Party. It’s literally on their website. It’s members are called Democrats.

            As for the College Democrats, this is what known as apposition. Nouns placed side-by-side in descriptive way.

            This organization is not The Democratic Party. Rather, this organization is for members of the Democratic Party, called Democrats, who are in college. Hence The College Democrats.

            https://en.wikipedia.org/wiki/Apposition

          2. And unless you are some kind of strict prescriptivist when it comes to language, there is literally no reason why “Democrat” can’t be an adjective.

            1. It’s a name, tkamenick.

              There’s no reason why Bretty-boy can’t be a name, but it’s not Brett’s name.

              1. Just about every other political party uses the same name for the party and its members.

                Republican, Socialist, Communist, Conservative in Uk, Liberal in Australia, Greens.

                Weird usages don’t get respected.

                1. “Weird usages don’t get respected.”

                  You mean to say, weird usages don’t get respected by jerks.

          3. Like I said above: It’s because the people who call it the “Democrat” party dispute the adjective.

            Why object to the usage, if you know which party is meant? Because you’re insulted by the implication that the party isn’t democratic. Thus demonstrating that, you, too, understand what is going on: Not a mistake, an insult.

            1. “It’s because the people who call it the “Democrat” party dispute the adjective.”

              I can dispute your name is Brett. I would be wrong.

              “Why object to the usage, if you know which party is meant?”

              Because it is wrong. The name of the party is the Democratic Party. It’s their official name.

              “Because you’re insulted by the implication that the party isn’t democratic. Thus demonstrating that, you, too, understand what is going on: Not a mistake, an insult.”

              It is an insult. A childish one. The insulter simply calls the insultee by the wrong name as a matter of course. Like if I called you Brettina, I would be 1) childish 2) insulting, and most importantly 3) WRONG ABOUT WHAT YOUR NAME IS.

              If I deliberately told other people you’re actual name was Brettina, despite you consistently telling me it is Brett, I would not only be wrong and insulting, I would be lying.

            2. It’s because the people who call it the “Democrat” party dispute the adjective.

              Which in itself is an insult.

          4. Note how noun and adjective remain the same.

            Yes, the adjectival form of some nouns is the same as the noun itself. For instance, “Christian” or “German”.

            With other nouns, they’re not, such as “Muslim”/”Islamic” or “Swede”/”Swedish”.

            I find it impossible to believe that even someone as dumb as you fails to understand this.

      2. Adjective, noun. Noun, adjective.

        We will add grammar to the always-expanding list of things that Dr. Ed doesn’t understand.

        Currently: Everything with the possible exception of 1950s trivia about the Androscoggin.

    2. Another way to tell it’s a partisan hack job is that Ken Paxton is involved.

      I’d say he’s doing it for a federal pardon, but isn’t he in trouble for state crimes? I get some of my state-level GOP corruption mixed up.

      1. Both. FBI is investigating whether he used the AG’s office to assist a donor in various ways. State authorities are investigating his securities issues.

      2. He’s been under a state securities fraud in indictment since 2015, but the AP also reported last month that he is being investigated by the FBI.

        1. What a swell guy. Just the type to seek favor from Trump.

      3. Yeah, I think Rick Hasen’s comment that “this is a press release masquerading as a lawsuit.”

        And it’s a press release for an intended audience of one, in hopes of jumping on the pardon train that is now boarding.

    3. The use of Democrat as an adjective has a longer and uglier pedigree than Limbaugh. The impulse to channel Joe McCarthy appears to be irresistible.

    4. Another way to tell it’s a partisan hack job is that if this same body of arguments had any validity, it would have resulted in President Clinton taking office in 2017.

    5. “Limbaughian pejorative “Democrat” ”

      Its a Ronald Reagan coinage, not Limbaugh.

      1. It is a Joe McCarthy slur, coined long before Reagan turned Republican.

  6. As Adler rightly notes, there is a certain amount of controversy around Texas AG Paxton. But saying there is controversy is an understatement. It would be more accurate to say that Ken Paxton is a clown and a crook. His filings should be viewed as intended for the circus.

    1. I haven’t followed what is going on with Paxton but whenever a Bush is lurking around I just assume it’s a Bush dirty trick to undermine a potential political rival. So Jeb! spent $100 million attacking Rubio simply to stop him from being the most prominent Republican Latino. And Comey and McCabe orchestrated the Russia collusion hoax in order to undermine Trump’s presidency for how he treated Jeb! and the W Bush legacy. Paxton is a potential rival to George P Bush for governor.

      1. The Russian collusion hoax was orchestrated by GRU, Stone, Manafort, Don Jr., Assange, among others.

        1. Hillary colluded with the Russians via GPS/Steele. Trump is correct that candidates are free to listen to people that offer them information.

          1. And then lie to the FBI about being in contact with those people?

            What about coordinating the release of stolen emails with the campaign through Stone?

            Then there was Don Jr.’s letter and testimony, which both contained verifiable lies, which no one has had to answer for.

            https://www.judiciary.senate.gov/imo/media/doc/2018-12-03%20CEG%20to%20Blumenthal%20-%20Trump%20Jr%20and%20Cohen.pdf

      2. Sebastian Cremmington : “Russia collusion hoax”

        (1) The Russian government actively assisted Trump’s campaign

        (2) There were a large number of bizarre and troubling connections between Trump associates and the Russian government.

        Two irrefutable facts, and the Right’s “collusion hoax” shtick is proven an obvious lie. When Russian Intelligence is committing cyber crimes to help Trump become president – at the same time DJT’s fixer is regularly sneaking into Moscow to negotiate top-secret business with Kremlin officials – at the same time Trump’s campaign manager is giving covert briefings to a known Russian spy – at the same Trump’s buddy Stone is talking to one of the cyber criminals mentioned above – what do you have?

        Clear justification for an investigation at a minimum. I doubt Sebastian Cremmington is so stupid he can’t see that. But – hey – defend Donald Trump and you have to take desperate & dishonest measures…..

      3. I haven’t followed what is going on

        You could’ve stopped there, instead of proving it with a bunch of insanity.

  7. I think the question is if four corrupt cities should be allowed to control America.

    1. I’m sure you do, but that’s because you’re an idiot with no idea what you’re talking about.

      1. To be fair, it’s because he’s a racist idiot with no idea what he’s talking about.

  8. Good luck with that.

    Texas has about as much chance of getting the Supreme Court to intervene as Alex Smith has of recovering from the devastating injury that almost took his leg, regaining his job as the starting QB of the 2-7 WFT, and leading it into the playoffs.

    Oh wait…

    1. Mr Smith’s recovery spanned 638 days and included 17 surgeries. At one point amputation was considered a necessary option. But he was never so crippled as Trump’s legal case.

      So the odds are worse.

  9. I’m in Texas. It’s commonly known that Paxton is a total scumbag.

    But, WTF? How could Texas possibly have standing to litigate Michigan election law? How the hell is Texas possibly affected?

    The race of the two major parties to the fringes continues. Want to truly fix the country? Destroy the Democratic and Republican stranglehold on elections.

    1. “Want to truly fix the country? Destroy the Democratic and Republican stranglehold on elections.”

      How about destroying the Democratic and Republican parties, period?

      1. Works for me. They are spiraling downhill and taking the rest of us with them.

        1. If I thought we could pull that off somehow, I’d be down. Both more tribal than policy these days.

          1. Let’s figure it out. The only “special interests” I’m really worried about controlling government are the Republican and Democratic parties.

          2. A “jubilee” where every existing politician was prohibited from ever running for office again could probably do the job. The problem is that they have a say in the matter.

    2. How the hell is Texas possibly affected?

      If they could show that it affected the outcome of the election, they’d be affected because they’d end up with a different President. That works for me.

      1. That applies to every state in every election. We gonna do this every 4 years now. 50 party legal free-for-all’s?

        This is a bullshit lawsuit. It pisses me off that Paxton is wasting state resources on it.

        1. I’m not saying that the Supreme Court should spend more than 5 seconds on it. I’m just saying that standing is probably not the issue.

          1. Sorry. Misunderstood you.

            How can all our politicians be totally without shame? If I was in Paxton’s position and filed this lawsuit I would be able to show my face in public.

            1. Because hardly anyone ever gets sanctioned for filing frivolous lawsuits.

          2. It goes beyond “every state in every election,” though. By the same logic, I, personally, as a resident of Massachusetts, should be allowed to sue North Carolina because I believe their voter roll purges were improper and caused the reelection of Thom Tillis, thus tilting the balance of power in the Senate, thus ending up with a different Senate majority leader. And I’d _definitely_ be able to sue Florida and Wisconsin for doing the same thing before the 2016 election, thus leading to Donald Trump becoming president, who I had to live under for four years.

            But I would be (justifiably) laughed out of court for claiming standing on either basis.

            1. No, because you don’t have standing to litigate issues that affect all citizens/persons equally. But Texas, as a parens patriae, doesn’t have the same constraints.

              1. Texas, filing as one state versus another as parens patriae on behalf of its residents, has the right to seek SCOTUS’s original jurisdiction, whereas I as an individual do not. But that’s a jurisdictional argument and not one of standing. Texas’s residents are no more or less affected by the outcome of the presidential election than any other citizen or group of citizens in the entire country.

                1. I am pretty sure this is the answer to what, until recently, I would have thought would only appear on a law school final in Federal Courts.

          3. Standing actually is a big barrier here, unless I am missing something. You have to show a particularized injury, and I don’t see how TX can do that.

      2. If they could show that it affected the outcome of the election, they’d be affected because they’d end up with a different President. That works for me.

        Not for the courts. If “we end up with a different president” were sufficient to confer standing, then all 330 million Americans would have standing. And they do not. You have to show how your grievance is specific to you, not generalized to everyone.

    3. To quote SCOTUS, there is no pandemic exception to the constitution. Texas is not suing other states for following their duly passed election laws. Texas is suing other states for unconstitutionally bypassing the laws written by their legislatures while Texas was under the impression that those laws had to be followed or the votes would be invalidated.

      1. And just how is Texas injured by other states´ alleged failure to follow their own election laws?

      2. The problem is that (a) this didn’t happen; (b) it wouldn’t be “unconstitutional” if it did happen; and (c) Texas would lack standing in any case.

    4. You need to read the briefs before commenting. First of all, greater minds than yours, namely the SCOTUS, has decided to hear the case and 7 other states have filed have made commensurate filings as well. More states will file. Read up.

  10. Amazingly (or suspiciously) enough, just last week the U.S. Solicitor General advised the Court that it should consider Texas’s bill of complaint against California over travel to states like Texas that have discriminatory laws in place.

    https://www.supremecourt.gov/DocketPDF/22/22O153/162752/20201204184410863_153%20orig%20Texas%20v.%20California%20-%20Final.pdf

    1. Okay, I give up.

      What, exactly, does this make you suspect?

  11. This is not a lawsuit. It is rube bait.

    None of these Trump-aligned lawsuits succeed as lawsuits. What they succeed at is getting a seemingly inexhaustible supply of really stupid people to send in money to Trump’s PAC to “Save America.” Needless to say it is a grift and their money doesn’t go to financing legal challenges. Instead it goes to Trump’s slush fund. And it says as much on the donation solicitation. Just to be above board and all legal-like.

    And as long as that money keeps flowing in they will keep filing more lawsuits. It doesn’t matter what they say. Merits? Evidence? Nah.

    I am surprised that the GOP and any Trump-aligned organization hasn’t been made subject of a consent decree by now. They do that to habitual junk-lawsuit players, don’t they?

    In this case Paxton needs a pardon. Really bad. That is probably the motivation for this. I wouldn’t be surprised if a quid-quo-pro phone call surfaces.

    1. Well, there is an investigation into pardons for cash right now. Not much detail has been revealed, but Trump reflexively tweeted “Fake News” about it, so I’m sure it’s true and involves him.

      https://www.bbc.com/news/world-us-canada-55156241

      1. There WAS an investigation, but not into the White house offering pardons. It was into people trying, unsuccessfully, to buy a pardon.

        Trump Associates Said to Have Been Scrutinized in Suspected Pardon Scheme

        No pardon was received, no bribe paid, nobody in the administration is implicated in anything. The only thing new is that a judge was persuaded to unseal some of the documents regarding the now ended investigation.

        1. Uh huh. I see you received your talking points memo. Your diligence has been noted.

          1. And you received your fake news promulgation memo, duly noted.

      2. Brett : There WAS an investigation, but not into the White house offering pardons. It was into people trying, unsuccessfully, to buy a pardon

        True enuff, and Brett deserves credit any time he gets something partially right (as encouragement). Of course Trump associates were the ones trying to broker the sale, but grifters gotta grift. Our current president likes having people around him like himself, so a sizable huckster presence in the White House is to be expected.

        That said, here’s the mind-bending question : Will those associates trying to sell a pardon receive one themselves? Per all the rumors, Trump plans to hand them out like candy on Halloween.

  12. Assuming that the 4 states in question permitted a rigged election to get certified (and yes that is an assumption, I’m not suggesting it is true…) it would be an interesting equal protection (“one man, one vote”) question for the Court. If a significant amount of the electors are not representative of the actual votes that would dilute the power of those who came from honest elections, thus diluting the power of the voter overall. Would that be enough to make it a federal question? Bush v. Gore would suggest yes.

    1. Fortunately Bush v. Gore is magic, in that it isn’t a precedent for anything other than that the Republican should win:

      Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

      1. Maybe that is the same magic that inhibits people from getting Covid at social justice riots….

        1. Jimmy the Dane : Maybe that is the same magic that inhibits people from getting Covid at social justice riots….

          Fair enough, but here’s something certain : Considering things from a health safety & anti-covid perspective, I’d much better be jostled in the middle of screaming BLM protesters than work in Trump’s White House.

          At least I’d have a chance of avoiding the virus among the protesters.

      2. Are you implying that the part you’re quoting means what you’re saying in your first sentence?

    2. Jimmy, under that rationale, the electoral college is itself unconstitutional (or would be, if it hadn’t been written into the text of the Constitution itself). And please note I’m not saying those are bad arguments.

      1. I don’t see how the electoral college would be unconstitutional. I take it the States have broad deference to conduct elections as they see fit. But, what if there was real evidence that an election was rigged – say video of an election official doctoring the tally that put a candidate over. Then assume the state court didn’t do anything about it (or punted the decision because of procedure).

        My first thought was “political question” in the same form as the “Republican form of government” clause of the Constitution. But, then again, are federal courts going to sit back and say “hands are tied because of federalism” if the evidence is compelling enough?

        1. Because rural state citizens get more representation than more densely populated state citizens under the current electoral college allocation.

          Thus, the electoral college violates the equal protection clause of the constitution. Or something.

          1. That’s largely correct; I would only add that it’s tough to square the electoral college with the idea of one man, one vote if someone living in Manhattan, Kansas has a vote that carries more weight than someone living in Manhattan, New York, simply because of their state citizenship. My vote should count the same no matter where I live.

          2. You are only thinking of one side of the equation. You flip that and give urban voters their “fair vote” (as you envision it) and all the sudden the rural vote no longer really counts. A candidate can win the presidency easily by just campaigning in 6-8 urban areas. Hence why we have the electoral college as it levels out that playing field somewhat.

            1. As opposed to the current system in which a candidate can win the presidency by campaigning in only five or six swing states? Unless you live in Ohio, Michigan, Pennsylvania, Florida or Wisconsin, your vote doesn’t count for much under the current system.

              1. That is assuming that the traditionally red/blue states will continue to vote as they are inclined. That wouldn’t necessarily be true if you switched to a majority vote kind of system. There you could easily just stick to the major population centers and completely ignore everyone else. Also those voters would quickly realize they have a large amount of power and would organize accordingly.

                Don’t get me wrong it would be an interesting premise to let the election be decided by New York, Boston, DC, Philadelphia, LA, Seattle, Portland, Chicago, and San Fran. Would probably be the death of national parties and you would get these little local and regional coalitions. But it wouldn’t fix any concentration of power issue. Probably would just amplify it and make it worse.

                1. The problem we have now is minority rule and all the frictions that that creates, not tyranny of the majority.

                  1. Not really. If the voter in New York city is that concerned about their vote and the impact of it they are free to move to any state of their choosing.

                    1. Wow. Is that a stupid argument.

                      “I think I’m going to leave my job, family, friends, etc. and move to Wyoming, so my vote will count more.”

                      Yeah. That’s the answer. Who makes this stuff up?

                    2. But what you are talking about doing is giving some preferred status to someone who chooses to live in a more populous state at the expense of someone who resides in a rural jurisdiction. Don’t see how the argument “if you care that much move” is a “wow” statement.

            2. The “fair vote” as I envision it would be one person, one vote. Rural votes still count. Rural votes each count as 1. Urban votes each count as 1.

              The electoral college was never intended to give rural (and sorry to say it) less educated voters a permanent and powerful handicap. That was the Senate. The EC only acts that way now because of the allocation of US representatives and EC votes is out of whack with population. This is a 20th century legislative phenomena. Not constitutional design.

              1. If you want to get down to original purpose (ignoring your slur against rural people) the EC was never meant to be selected by the voters of the several states.

              2. Your assertion that the EC is “not constitutional design”, given that it’s in the constitution, is……well, you’re a rural person, aren’t you.

                1. The current apportionment favoring low population states is constitutional design?

                  Your reading comprehension needs work.

                  As for that ‘slur’, it is factual, and partially explains why the US has become the puzzling case of the only first world democracy with mainstream science denialism. Facts don’t care about your feelings, right?

            3. the rural vote no longer really counts.

              A rural vote would count just as much as an urban vote.

              Why is that so hard to understand?

              It’s not that “New York,” say, would be so powerful. It’s that a New York vote would be just as important as a Florida vote or a Wisconsin vote.

              1. But that is not how it will work in practice. Campaigns will be restricted to high impact urban areas. Stop being disingenuous pretending you don’t know that is what exactly what would happen.

                1. It’s unclear why you think this would happen. Right now we have popular vote for statewide elections. Do those campaigns limit themselves to urban areas? When someone runs for governor of Pennsylvania, does he only campaign in Philly and Pittsburgh and ignore the rest of the state? Do candidates for senate in Florida only go to Miami, Tampa, and Jacksonville?

            4. Jmmy, that’s why you like the electoral college, not why we have it. In the founding era, every state was overwhelmingly rural. There wasn’t any urban/rural divide to redress.

    3. significant amount of the electors are not representative of the actual votes that would dilute the power of those who came from honest elections, thus diluting the power of the voter overall. Would that be enough to make it a federal question?

      The “one man, one vote” principle you’re referencing concerns equality of voters within a state. There’s no question that votes have different weights across different states. And since nothing in the constitution requires states to consider vote results at all in apportioning their electors, it’s hard for me to see how a state can ask a federal court to change those results in a different state.

      Bush v. Gore would suggest yes.

      Can you develop that argument a little? I’m not seeing it.

  13. You know, I used to think that if you wanted a good money-making scam, you went into the religion business. I now see the error of my ways and plan to start a fundraising drive to help Trump un-steal the election.

    Although for some people, Trump *is* a religion, so maybe I was right after all.

    1. For all the gnashing of teeth about Trump being a phony and fraud, he certainly is making a lot of people a lot of money with publicity. Conway just signed a multi-million dollar book deal to talk about her time at the White House. Put this on top of all the other books that scream about the Trump administration. I wonder if by the time all the memoirs and policy books are released if Trump is going to be the must written about President in history. (I’m sure he would be tickled pink if that became true.)

      1. True enough. Trump has been flamed by more scathing tell-all books during his administration than any other president. When you inspire contempt over loyalty I guess that happens.

        And this was while he still held government power, had the entire GOP terrified of his tweets, and repeatedly showed himself petty & vindictive. Given all that, just image the flood of embarrassing revelations yet to come!

    2. Wouldn’t get you any money from me, I stopped donating to Trump a few days before the election, when I figured he was either going to win or lose, and no amount of last minute spending was going to change anything.

      He’s a billionaire, so far as I’m concerned he can spend his own money on long shot legal fights.

      1. He says he’s a billionaire. He lies about everything else so I’m not sure why to take his word about that, especially when he won’t release his financial records.

        1. He has filed financial disclosures as required by law. Assets and debts are listed.

          He owns valuable real estate and his leverage is pretty low. Lots of equity in those properties.

  14. As the Judge in Michigan stated yesterday in dismissing Sidney Powell’s preposterous efforts: “That ship has sailed.” I am not a lawyer but would expect the concept of laches (lack of timeliness) would apply.

    No one has produced any credible evidence of irregularities. It is just speculation and conjecture “based” on conspiracy theories. The real reason for this litigation is that people are unhappy with the outcome.

    Unfortunately, we have a deranged president who thrives on conspiracy theories and who is easily influence by anyone who either massages his ego or says something that appeals to him. He is profoundly incurious.

    Remove Trump from the equation and this litigation (some 50 cases I think) would not exist.

    It has become quite apparent to me via Twitter (to the extent that Twitter provides a reliable sample) is that the driving force for supporters is Roe. Roe is the ONLY thing that matters to them. A serial adulterer with two divorces and six creative bankruptcies gets their adulation because he claims to be anti-choice.

    1. Well it’s not new for them to be hypocritical. “Pro life” but don’t give a damn about a child as soon as they exit the womb.

      Why is it a stretch to support such a reprehensible scumbag just because he’s promising to give them things like overturning Roe v Wade?

      1. “but don’t give a damn about a child” That says way more about you than it does about the people you are trying to insult.

      2. What is this, some sort of “Chinese obligation”? I somehow save somebody’s live, I have to support them the rest of their lives?

        I assure you that, if you murder a child a week after they exit the womb, I’ll care as much as if you murder them a week before. But objecting to murder doesn’t obligate you to support anybody.

  15. Funny how all these assholes are only challenging fraud in the states the Trump lost huh? I mean, if it’s so gd rampant then why not challenge it EVERYWHERE?

    Bunch of traitorous fucks.

  16. Are the clingers getting tired of winning yet?

  17. As flagged by Gerard N. Magliocca at balkin.blogspot.com, Paxton claims

    The probability of former Vice President Biden winning the popular vote in the four Defendant
    States—Georgia, Michigan, Pennsylvania, and Wisconsin independently given President Trump’s early lead in those States as of 3 a.m. on November 4, 2020, is less than one in a quadrillion, or 1 in 1,000,000,000,000,000. […] See Decl. of Charles J. Cicchetti, Ph.D.

    Either professor Cicchetti is making a very bad assumption or he should forfeit his degree.

    1. One assumption appears to be that Trump was actually leading in those states as of 3 a.m. on November 4, 2020, as opposed to trailing but with more of his votes having been counted at that point because in-person votes were counted first.

      Charles J. Cichetti, Ph.Derp.

    2. I was going to point this out.

      Magliocca calls it “The Dumbest Statement Ever Made in a Supreme Court Filing.”

      I can’t find Cichetti’s declaration online.

  18. It is funny to see how the media is treating the woman who was election rigging witness and apparently used to be a stripper compared to how they treated Stormy Daniels.

    1. Are you talking about Carone? It’s not being an ex-stripper that she is being criticized for, it’s for making shit up and being incoherent when testifying in Michigan.

      Daniels, OTOH, seems to have been telling the truth about Trump.

  19. The reaction to the election winners is fabulous. They are taking winning harder than those of us who backed Trump.

    None of these suits have a snowball in hell chance but you froth at the mouth about them.

    Chill, unless another pulling a dog’s tail while naked incident occurs, your guy will be president.

    1. They are taking winning harder than those of us who backed Trump.

      No we’re not. What we’re taking hard is the continuing idiocy and gullibility of people like JTD, Brett, and Dr. Ed, who continue to believe the election was stolen. If it was just a handful it would be nothing, but most of the Republican Party seems to be just as gullible, which is, in fact, a real threat to the country.

    2. We are reacting to Trump taking a dump on democracy by convincing half the people Biden is not a legitimate president.

  20. One day after Safe Harbor. An odd mix of gallimaufry and flashes of real issues. There’s an OPOV claim lurking just after the Yick Wo gobbet. (The nation as the jurisdiction that would see votes diluted.)

    Quirky point, but remand as a judicial act is getting a bit weird. In the remedy section, Texas appears to ask for a remand to the state legislatures, which is presumably referring to an injunction; last week, Scotus remanded to the 9th circuit after vacating the district court holding — but it was before the circuit on an interlocutory petition, and the Scotus grant was in advance of the circuit holding. Perhaps normal, but seemed odd. To remand something, presumably (1) it has to be a court; (2) the court has to be sufficiently seized of the case to effectuate the task on remand; (3) it has to be mailed a bit earlier during the holidays.

    Mr. D.

  21. The problem is not tjis case and this court but what is to come.

    If the court has a reputation for following no fixed principles but being the arbiter of social policy decisions based on what what a majority of its members thinks is right, then all it takes is finding five people willing to think that Texas, or future litigants like it, is right here.

    Time and again, what was once unthinkable and an obvious violation of basic principles becomes the law of the land.

    There can be no safety or security for a constitutional republic when the court becomes a genie able to grant wishes if it merely gets rubbed hard enough. The court becomes the slave of the possessor of the lamp. All political fights become political fights over, not principal or legitimate process, but lamp possession fair or foul.

  22. Has SCOTUS set a deadline for the defendant states to reply? It seems to me that standing is an insurmountable obstacle to Texas´s efforts. How is there particularized injury to the State of Texas from the defendant states´ conduct of their elections?

    1. I see now that the deadline for answering is Thursday afternoon.

    2. I would really like to see at least one defendant state submit a one-sentence response brief saying “this is pure BS, and you know it.”

  23. The standing argument seems especially weak. What business is it of Texas how other states appoint their presidential electors?

    Texas cites 14th Amendment Equal Protection cases for its claim to have an interest in what is happening in its sister states. But the 14th Amendment protects persons from states, not states from other states.

    It appears states rights and state autonomy are principles Texas espouses only when it is convenient.

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