Election 2020

Additional Filings in and Additional Thoughts on the Texas Election Suit

Donald Trump, 17 State Attorneys General, and a bunch of Republican former office holders submit briefs to the Supreme Court.

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On Monday, Texas filed the most audacious lawsuit of the 2020 election season: An effort to have the Supreme Court prohibit four other states—Georgia, Michigan, Pennsylvania, and Wisconsin—from selecting presidential electors in accord with the election results certified in each of those states. In this post, I provided some initial thoughts about that lawsuit here, identifying some of the jurisdictional and other problems with the suit. David Post highlights some statistical stupidity that made it into the filings here and here.

In filing this suit against four of its sister states, Texas invoked the Supreme Court's original jurisdiction. Accordingly, Texas submitted several filings, led by a Motion for Leave to file a Bill of Complaint, which is basically the way a state seeking to invoke the Court's original jurisdiction asks the court for permission to file. Additional filings included briefs supporting the motion and requests for extraordinary relief, in this case injunctions against four other states selecting presidential electors based upon the November 3 election results. As Ilya explains, the effort to invoke original jurisdiction raises some interesting issues, not least whether the Court even has the discretion to deny such a request. As recently as this past February, two justices (Thomas and Alito) expressed the view that the Court is obligated to grant such motions and hear state claims.

The Court set Thursday as the deadline for the defendant states to respond to the Texas filings. In the meantime, the docket lists several new filings in the case.

The first brief supporting Texas to be filed came from 17 state attorneys general, led by Eric Schmitt of Missouri. This is a very squirrelly brief. On the one hand, the brief claims numerous non-legislative officials violated the constitution by making changes to election rules to account for Covid-19 (much like happened in Texas too, shhhh!), that such changes increased the risk of fraud, and that Texas has raised "important questions about election integrity" that the Court needs to address. On the other hand, it confines itself to the Electors Clause claim, never mentions the Equal Protection or Due Process claims, and never endorses the Lone Star State's call for extraordinary relief or the invalidation of presidential electors.

At times the brief speaks aggressively of "unconstitutional encroachments on the authority of state Legislatures" committed by officials in the defendant states. At other times the brief merely notes that Texas "alleges" unconstitutional actions. It is almost as if these portions of the brief were written by different sets of attorneys (which is possible given the speed with which this was put together). It would not surprise me if some AGs wanted to endorse the Texas arguments whole hog, while others wanted to maintain a critical distance, and this internal tension was never resolved.

Taking the brief as a whole, it seems clear that at least some of the signatories were hoping to appease Trump supporters within their states (and perhaps forestall primary challenges in future elections), without endorsing the Texas arguments in toto. I cannot imagine that all the AGs are comfortable with the idea that one state can sue to challenge the way another state conducts its elections. Is this is a precedent the AGs who signed on want to set? Do red states really want to create a precedent for blue states challenging their election rules?!? If you doubt that could happen consider that in 1966 Delaware tried to file an Equal Protection claim against New York objecting to the latter's winner-take-all means of allocating electoral votes. This system, Delaware claimed, diluted Delaware's electoral votes and the votes of its citizens. By supporting the Texas suit, these AGs are virtually inviting more of this sort of litigation.

Note that if state legislators or candidates believe that non-legislative actors have violated the legislatively authorized election scheme in a given state, they have ample ability to press such claims in state court (provided they do it in a timely manner), and state legislatures retain the ability to act if an election does not result in a certified result that produces the selection of presidential electors. In other words, accepting the principle that state legislatures must set election rules does not lead to the conclusion that one state can sue another for adopting the wrong set of election rules.

Arizona also filed a motion for leave to file an amicus brief (but without the brief attached, as is traditional), stressing the need to resolve this dispute quickly.

As promised on Twitter, the President has joined the fray. Professor John Eastman has filed briefs on behalf of Donald Trump, seeking to intervene in the case and endorsing the call to enjoin the defendant states from appointing electors in accordance with their certified election results. The brief opens by discussing how many American believe the election must have been stolen because Trump increased his share of non-white voters and won bellwether states (Ohio and Florida) and bellwether counties.  It has a section of "additional facts" that is focused on Georgia, and claims that the rate at which absentee ballots were rejected in Georgia dropped precipitously. Yet these claims are directly contradicted by the Georgia Secretary of State (see also here).

On the legal issue, the Eastman/Trump filings follow Texas in identifying the kernel of a valid legal argument–state legislatures determine the manner of selecting presidential electors–and on that basis asserting that any and all actions taken by executive branch officials, state election officials and state courts affecting election rules are therefore unconstitutional. While it is true that state courts cannot wholly rewrite state election law, as some would argue the Florida Supreme Court did in 2000, there is nothing in the Constitution that prevents state legislatures from delegating authority to state election officials or authorizing state courts to adjudicate election-related disputes as part of the overall legislative scheme, as the three-justice concurrence in Bush v. Gore affirmed. It is an indication of how extreme the Eastman/Trump arguments are that they go well beyond the bounds of the Bush concurrence. [Update: Based on the brief's metadata, it also appears that the brief may have been drafted by Lawrence Joseph, who is one of the attorneys listed on the Texas brief. If so, I'm not sure how kosher that is.]

Today also saw the submission of a brief of "constitutional attorneys" including disgraced former Alabama Supreme Court Justice Roy Moore (who does not understand the constitution) also filed a brief arguing that the Constitution endorses Texas's arguments, and then goes on to argue that "advance voting schemes" are unlawful, while stopping just short of alleging that absentee voting is unlawful.

Saving the best for last, there is also an amicus filing on behalf of lawyers and others who have served in government as or on behalf of Republicans, including Carter Phillips, Stuart Gerson, Donald Ayer, John Bellinger III, and John Danforth. It also includes a few prominent conservative academics, including Michael Stokes Paulsen and our own Keith Whittington. It highlights the extreme nature of what Texas is requesting and is directly aimed at the Court's conservative justices.

Here's a taste:

There are myriad reasons to deny Plaintiff's Motions. This amici brief focuses on one: the Constitution does not make this Court the multidistrict litigation panel for trials of presidential election disputes. Pursuant to the Electors Clause and 3 U.S.C. § 5, state legislatures have made state courts the tribunals for presidential election disputes. This Court's only jurisdiction is appellate.

The Electors Clause and 3 U.S.C. § 5 contradict the Plaintiff's unprecedented argument that a presidential election dispute is a controversy between two or more states. These provisions contradict Plaintiff's argument by authorizing each state to delegate by statute the adjudication of all controversies or contests concerning federal presidential election results in that state to that state's courts. Such statutory delegation to state courts is part of each state legislature's chosen statutory "manner" for presidential elections as much as are the statutes on, for example, mail-in voting. A state's chosen "manner" applies "exclusively," McPherson v. Blacker, 146 U.S. 1, 27 (1892), "absent some other constitutional constraint." Chiafalo v. Washington, 140 S. Ct. 2316, 2324 (2020) (emphasis added). There is no constitutional constraint against state courts being the trial courts for presidential election disputes.

Moreover, 3 U.S.C. § 5 expressly and properly enables a state to designate "its" state tribunals as the "conclusive" arbiter of "any controversy or contest concerning" presidential election results in that state. (Emphasis added.) In the rare instance that a  state supreme court's ruling violates a federal constitutional provision or statute, this Court has appellate jurisdiction. See, e.g., Bush v. Gore, 531 U.S. 98, 100-01 (2000) (per curiam).

Plaintiff's Motions make a mockery of federalism and separation of powers. It would violate the most fundamental constitutional principles for this Court to serve as the trial court for presidential election disputes. . . .

Federalism and the separation of powers protect our liberties. See Shelby County v. Holder, 570 U.S. 529, 543 (2013). They "divide[] power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day." New York v. United States, 505 U.S. 144, 187 (1992). Consistent with these principles, the Constitution and Congress have enabled each state to provide law and to adjudicate in its courts all controversies about the presidential election in that state.

This Court should reject Plaintiff's request to transfer the powers of 50 state court systems to this Court. The caution of Rucho v. Common Cause, 139 S. Ct. 2484 (2019), fits here even more:

What the [Plaintiff] seek[s] is an unprecedented expansion of [federal] judicial power. . . . The expansion of judicial authority would not be into just any area of controversy, but into one of the most intensely partisan aspects of American political life. That intervention would be unlimited in scope and duration – it would recur over and over again around the country with each [presidential election]. Consideration of the impact of today's ruling on democratic principles cannot ignore the effect of the unelected and politically unaccountable branch of the Federal Government assuming such an extraordinary and unprecedented role.

My only real quibble with this brief is I am not sure I would deny Texas's Motion for Leave. Rather, I would be inclined to grant the motion, and then deny the request for emergency relief and dismiss the case for lack of jurisdiction and failure to state a claim. The end result, however, would be the same.

As noted, the defendant states will file their response Thursday, so the earliest the Court is likely to act is Thursday evening or Friday. The response and any additional filings will be posted on the Court's docket page for the case here.

 

[Note: I edited this post to fix an awkward sentence and some typos, including saying there were 18 states on the Missouri-led brief instead of 17.]

NEXT: Harvest Rock Files Renewed Emergency Application for Injunction with Supreme Court in light of California's New Restrictions

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  1. Texas, clinger king,
    leads Republicans toward
    humiliation

    #YeeHaw!

    1. Bigot.

    2. Kirkland won’t last long if things get ugly…

      1. You know, Knobby, you must be a lot of fun at parties.

      2. Why? Has he threatened anyone?

        And since that’s a pretty assertive statement, apparently you have information concerning plans and preparations for such an attack.

        I strongly suggest you report all illegal activity to your nearest law enforcement agency.

        1. All the time. You don’t think, “Open wide, clinger!” is a threat? Among others.

          Perhaps you meant, “Has he threatened anyone with imminent lawless violence?”? Not to my knowledge, so he’s pretty safe on a legal front.

          Maybe less safe if “things get ugly”, depending on what that means.

  2. “The brief opens by discussing how many American believe the election must have been stolen because Trump increased his share of non-white voters and won bellwether states (Ohio and Florida) and bellwether counties.”

    Eastman: 9 of 10
    dumbasses are convinced that . . .
    so . . . aw, hell, Trump wins!

    1. Hi, Artie. Biden, Not My President.

      1. Perhaps not yet, but you can count the days.

  3. Trump’s delusional behavior has made a mockery of American values. What we’re seeing right now is “party over country” attitudes inconceivably backed with actions.

    Congratulations “Republicans,” you’ve pushed yourself completely out of the realm of possibility for this moderate to support your or your party.

    I won’t be voting for any GOP candidate again until it’s been purged of these people. I look forward to your fall into irrelevance and replacement with conservatives who won’t sell their morality for a chance at a pardon or power.

    1. What happened to the *good* Republicans like Mitt Romney, John McCain, and Barry Goldwater?

      1. Well, two are dead.

      2. Romney: Neutered
        McCain: Deceased
        Goldwater: Deceased

        Notice that Utah joined in the Texas suit to throw out the PA votes. Where’s Romney on that? Equivocating? Between a rock (his principles) and a hard spot (his desire to remain employed.)

    2. Same. I was a republican precinct committee officer at one time. Now, I don’t want to be seen in the same room with the GOP. Unpatriotic, traitorous, lying, corrupt, and worst of all: dumb.

      1. But the Republican party base hasn’t changed. The idiots who now believe in unproven, outlandish conspiracy theories are the same ones who fought SSM, supported the War in Iraq, and have voted Republicans for decades. The only thing that changed is that you’re now aware of just how delusional, willfully ignorant, and desperate for authority figures they are.

        1. I know. I always felt a little uneasy at GOP meetings. I felt like I was in a room full of religious and conspiratarian morons sometimes. Nominating Trump just really dropped the mask, from my perspective.

  4. Eastman. How can it get any better than somebody who claims that the next Vice President is not a natural born American. Not only that, he claims that she’s not an American at all.

    This circus of goofball lawyers is something. Guiliani, Powell, Ellis and now Eastman. Can Charles Carreon be far behind?

    1. Orly Taitz has expressed interest in joining Trump’s legal team, so why not? What’s one more clown in this shit-side circus?

      1. Oh, man, I’d fogotten about multifarious Orly. Not only is she a lawyer, a dentist, and a real estate agent, she’s an airport in France.

        1. LOL. God, I miss her televised appearances.

  5. The lawyer loves nitpicking, procedure, and pettifoggery, except when it comes to Trump, then litigation is ridiculous.

    All I see in this post is ad hominem remarks. They violate the Fallacy of Irrelevance, and are dismissed.

    Every Justice is a member of the Deep State, by acculturating to the rent seeking capital of the US, Washington DC. The American people wanted Trump to stop the Deep State and its failed policies. Now, he is being cheated out of the election. The Deep State has won.

    In formal logic, the contrapositive of a true assertion must be true. All bats are mammals. This animal is not a mammal. It cannot be a bat. If you believe that legal liability and the rule of law are replacements for endless cycles of violence, then lack of legal recourse means what? Enjoy the consequences you lawyer cheaters.

    1. Trump’s campaign does not have a problem with a “lack of legal recourse”.

      It does have a problem that every time one of their lawyers leaves a press conference with a pile of evidence, they mysteriously lose it on their way to the court room.

    2. Are you a speak-and-spell?

    3. “All I see in this post is ad hominem remarks…
      Every Justice is a member of the Deep State…”

      Presented without comment.

    4. You appear to have ingested some really bad drugs. Stay away from open windows, don’t want you to experience auto-defenestration.

      1. Keep passing the open windows…
        – The Hotel New Hampshire

    5. Love the tension in this comment between its invocation of formal logic and its crazy “deep state” conspiracy theory promotion!

  6. “Note that if state legislators or candidates believe that non-legislative actors have violated the legislatively authorized election scheme in a given state, they have ample ability to press such claims in state court”.

    Isn’t that kind of dicey in a state like Pennsylvania, where the “non-legislative actor” in question was the state supreme court? “Why, no, we did nothing wrong, case dismissed!”

    1. Brett, you’re too dumb to know what you’re talking about. The PA case involves complaints about the law passed by the legislature.

      1. Complaints that it was violated, yes.

        1. No Brett, the complaints were that it was followed. Specifically, that the statute allowed no-excuse absentee voting.

          1. Yeah, one of the complaints about PA, just one of them, had to do with that. The rest didn’t.

            If you wanted to say the Texas complaint was somewhat internally inconsistent, I wouldn’t argue. Very much in a “My client didn’t shoot him, and anyway, it was in self defense!” spirit: Either the PA constitution overrides the will of the legislature, in which case the no-excuse absentee voting was unconstitutional, or it doesn’t, in which case the way it was implemented contrary to the statute did.

            1. Interpretation of the Pennsylvania Constitution does not present a federal question.

      2. Brett’s not dumb. He’s a propagandist.

    2. Brett, from a pragmatic standpoint, what are the likely outcomes?

      One, SCOTUS denies cert. The EC votes, and we have a POTUS-elect.

      Two, SCOTUS takes the case. Net net of their decision? They will toss the matter right back to where it belongs…the individual state legislatures. This is a political issue, ultimately. Politicians will resolve it.

      To borrow slightly from Justice Gorsuch….There is no world we live in where SCOTUS is going to decertify the popular vote of 4-5 states, absent the involvement of the state legislature.

      1. I agree on the likely outcome.

        Unlikely, but what I’d like to see, is a ruling along the lines of, “We dilly dallied too long for there to be a remedy, but going forward, everybody is on notice: Legislatures DO have plenary authority to write federal election laws, which may not be violated even by order of a court. Stop with the waiving election laws, already!”

        This is an example of hard cases making bad law. They did put things off to the point where the only remedy was one they’d flat out never call for, and as a result they’re going to effectively turn state election laws into suggestions by endorsing violations of them.

        1. Ken Paxton, not the S.Ct., waited until Dec. 8th to even file this trash fire piece of work. Why should the S.Ct. *ever* feel a need to say “*We* dilly dallied too long for there to be a remedy”?

          1. Because PA’s election law violations WERE challenged prior to the election. The Supreme court refused the challenge.

        2. Legislatures DO have plenary authority to write federal election laws, which may not be violated even by order of a court.

          But this is literally a retarded position which nobody who has actually graduated from law school — or high school — could adopt.

          It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

  7. The lawsuit does have a point, both the courts and the legislature have upsurped legislative power by modified election law by fiat. But the remedy can’t be throwing out all the ballots of voters who relied on the modified regulations in good faith.

    1. That should be “the courts and executive”

    2. But the remedy can’t be throwing out all the ballots of voters who relied on the modified regulations in good faith.

      So the lesson then is that if you jam through your modifications right at the last minute so they can’t/won’t be challenged beforehand, you win when they’re challenged afterward because reliance interests? That can’t be right.

    3. Are the state courts the executives and agencies usurping authority or are they exercising it in accordance with state laws enacted by the legislatures and in accordance with the state constitutions?
      Who gets to decide the answer to that question, the several states or Texas?

      1. Well, in 2000, the Supreme court decided that state courts didn’t get the last word in federal elections.

        And Texas isn’t claiming Texas gets the last word. They’re claiming the Supreme court does. When you allege a crime, you’re not saying YOU get the last word as to whether the conduct was illegal, you’re saying the courts do.

        1. “Well, in 2000, the Supreme court decided that state courts didn’t get the last word in federal elections.”

          No, the SC decided that the state could not have different counting standards in different counties. The only reason they didn’t send it back to Florida, where the Florida court could get the last word, was because of time.

          1. You’re thinking Bush v Gore. I’m talking Bush v Palm Beach:

            ” This Court generally defers to a state court’s interpretation of a state statute. But in the case of a state law applicable not only to elections to state offices, but also to the selection of Presidential electors, the state legislature is not acting solely under the authority given it by the State, but by virtue of a direct grant of authority under Art. II, § 1, cl. 2, of the United States Constitution, which requires each State to appoint its electors “in such Manner as the Legislature thereof may direct.”

            While state courts must be free to interpret their state constitutions, it is equally important that ambiguous or obscure statecourt adjudications not stand as barriers to a determination by this Court of the validity of state action under the Federal Constitution. Intelligent exercise of the Court’s appellate powers compels it to ask for the elimination of the obscurities and ambiguities from the opinions in such cases.”

            The Court held that in Presidential elections, the federal courts COULD double-guess state courts.

            1. Hey, Brett: what was the holding of the case?

    4. Hm, how does the legislature usurp its own power?

      1. By resisting Trump’s coup attempt.

  8. I am saddened that so many in the Republican Party are willing to repudiate the basic concept of a republican form of government when they think they stay in power if they overthrow republican means.

    I am surprised there haven’t been states seeking to intervene to defend their right to appoint their own electors their way free of other states’ meddling in their business.

    I agree that goven the amount of attention this case has attracted, it might be best for the court to provide some sort of opinion explaining why it is not granting Texas’ requested relief, at least a broef ome. This could either be an opinion denying the motion for leave to file a complaint, or an opinion granting the motion but then dismissing the complaint for failure to state a valid original jurisdiction cause of action.

    1. That’s dumb. Even for you.

      1. Mr. Jwpvysig, Sr, must be wondering where he went wrong.

  9. I also find myself very skeptical that whenever state officials exercise any discretion at all, the federal constitution is somehow violated. I don’t think the constitution’s delegation of the procedures for apointing electors to state legislatures is so rigid as to encompass a mundane irregularities like a county official’s decision to accept a signature without a middle initial. Some of the claimed irregularities have been so minor that claiming they are all severe violations of the constitution requiring drastic remedies is not just grossly inconsistent with the concept of limited federal judicial power amd state sovereignty, it’s just plain silly.

    1. I found an article that said the PA courts said PA could not reject a ballot purely on a signature match (presumably miss-match) alone.
      https://www.politico.com/news/2020/10/23/pennsylvania-court-ballot-signatures-431794

      1. What the PA court found was that the governing statute neither required nor allowed ballots to be thrown out based on signature mismatches.

        You are welcome to read the decision and offer your criticisms, but until you’ve done that I think you should avoid commenting on this subject.

        1. You are welcome to read the decision and offer your criticisms, but until you’ve done that I think you should avoid commenting on this subject.

          Hearken unto your own words, friend. Here’s the very last sentence of the opinion (emphasis mine):

          For all of the aforementioned reasons, we grant the Secretary’s petition for declarative relief, and hold that county boards of elections are prohibited from rejecting absentee or mail-in ballots based on signature comparison conducted by county election officials or employees, or as the result of third-party challenges based on signature analysis and comparisons.

          1. I’m not sure what point you are trying to make.

            As I read the PA decision it says that there is no statutory requirement for signature matching, so complaints about that process are unjustified.

            1. Right, there’s a requirement for a signature, but the legislature never intended that it had to be the right signature. A ballot in the name of Bob Smith shows up, the signature is “Mickey Mouse” in block letters, we’re good.

              1. Oh look, more bad faith nonsense from Brett. Quelle surprise.

              2. If you read the decision, it is not as absurd as it sounds. The identity verification is supposed to be satisfied by having the absentee voter provide his DL# or SSN (last 4 digits). That alone makes any sort of large-scale ballot stuffing very difficult.

                1. Yes, and if you read the Texas complaint, they say that the requirement that the signature match derives from a different part of the law than the one the PA supreme court was pointing to.

                  1. Remind me which body is the official and final determinant of what Pennsylvania state law requires?

  10. Do any of the amici address Texas´s standing difficulties regarding other states´ conduct of their elections? Lack of standing appears to be the surest route to disposition of this bizarre lawsuit.

    1. Well, the opposition amici brief joined by Professor Whittington explains quite clearly why it’s not an inter-state dispute. Does that count?

      1. That would be relevant to the injury in fact analysis.

  11. When I was in law school, I edited a student note involving the Supreme Court’s original jurisdiction. At the time, I couldn’t find any treatise or practice guide or other significant publication on the general topic. I suggested to her that she could parlay her work into becoming the leading expert on the original jurisdiction of the Supreme Court and making big bucks by, literally, writing the book on it. Maybe I scared her because she left the law after a few years.
    Are there any generally-recognized experts on the original jurisdiction of the Supreme Court and would there be any market for a treatise?

  12. Eastman is the guy who tried to birther Kamala Harris, right?

    1. Indeed he is. Also some sleuths on Twitter have figured out that the Eastman brief was probably ghost written by the person/team writing the Texas brief itself.

      https://mobile.twitter.com/rickhasen/status/1336795297456869377

      1. Maybe, after the election has been decided, I will conduct a competition involving predicting the names, in order, of Republican lawyers disbarred, censured, reprimanded, or ordered to pay legal fees with respect to Trump Litigation Elite Strike Force: The Clingers Flail.

        1. Any lawyer who submits a brief in PDF format without scrubbing the metadata (and flattening the document) should be disbarred for plain incompetence.

    2. Right. Because her parents were immigrants, or maybe because her skin was the wrong color.

      I’ve forgotten the specifics of his argument.

      1. It was a bad argument. Not only did he argue that she was not a citizen at birth but that because she had never been naturalized, she never became a citizen at all. The obvious conclusion to that argument is that she is an illegal alien subject to deportation as she’s too old to be DACA eligible. That’s towering legal intellect, that is.

      2. It’s something about how being born in Oakland, CA, doesn’t automatically grant citizenship.

        1. Or Hawaii. A claim which, arguably, helped propel Trump to the Whitehouse.

          As long as this stupidity is rewarded so handsomely, it will continue.

  13. I understand that Rule 11(b) is rarely used.
    I was wondering if it was ever used in a case before SCOTUS?

  14. What should astonish any reasonable observer is the degree to which the peanut gallery just simply refuses to read the filings, affidavits, or other evidence. They simply dismiss it out of hand as some sort of crackpot conspiracy theory.

    There used to be a day and age where if 17 state AG’s had serious concerns with the legitimacy of an election we would at least hear them out instead of just calling them names. (And I will also point out many of the people now doing the name calling are the same ones who for years chided Trump for doing the same.)

    Ignoring people’s complaints is a sure fire way of cementing them as legitimate and then making fun of the people who have those complaints is a really good way to make them double down on their beliefs. And what do you think is going to happen if around 35% of the country thinks Biden was illegally elected President come January 20?

    1. Their complaints are not being ignored.

      What is the current legal challenge record for Trump campaign, 1-46?

      The problem is that their grievances have been heard, heard, heard again, then heard some more. And there is nothing there. Nothing.

      This is not seeking justice. It is an attempt to overthrow our government, an auto-coup.

      I suggest you read the source material.

    2. Actually, plenty of people are taking the time to read the briefs and explaining why they’re nonsense. What’s actually happening is that people like you keep asserting that just because Trump and friends are making noise that there’s some kind of meaningful substance to them, when court after court has found the opposite.

      This whole debacle basically proves that Trump was right back in 2016 when he said that he could kill someone in broad daylight on Fifth Avenue and his supporters would still have his back. It apparently doesn’t matter what sort of nonsense argument he makes, because like you say 35% of the population is ready to believe him no matter what.

      1. Trump accused Ted Cruz of cheating in the 2016 Iowa Caucuses…and now he wants to press Trump’s 2020 cheating case at SCOTUS.

        1. So we find out that Ted Cruz is an intellectual whore. Dog bites man.

        2. Trump also made fun of Cruz’s (aka The Canadian) wife’s good looks and suggested that Ted’s father was involved in the Kennnedy assassination. Ted took the high road and didn’t respond by pointing out that Trump’s father was a klansman and his grandfather a gold rush pimp.

          1. Several of them also smelled of elderberries.

            1. This Supreme Court case requires more of a “Dead Parrot” approach, I think.

      2. His more relevant statement in this context was to his biographer in response to a question about inflating his tv show ratings: “People will just believe you. You just tell them and they believe you.”

    3. You know there are lots of people, like Brad Heath for instance, who are reading these things and finding them simply nuts or factually incorrect. Confusing Michigan with Minnesota, making up counties, etc. I mean Sidney Powell is trying to use an anonymous expert named Spider and trying not to disclose them to anyone. A Michigan court did read some of the affidavits and found them not credible. People have also listened to some of these “hearings” and found the witnesses to be complete jokes. The problem isn’t that people are not reading and listening to them, it’s that they are.

      1. I think it is fair to point out quality issues in the pleadings. Then again I have read many legal documents that were far from perfect.

        But this also goes to my point. Commenters (here and elsewhere) are saying things like “what a bunch of idiots confused some states!” and “can you believe that one witness is a stripper!” Using such arguments to discredit the effort is certainly an effective rhetorical trick, but it does little to get to the actual issue. And it’s one thing to treat a handful of people like idiots, but a whole different stack of cards when those people are a good 30% of people

        1. Ok, so what lawsuit, in your opinion, was worthy of consideration? Which lawsuit was it that alleged sufficient fraud, or other illegalities, to have an effect and that was also supported by decent evidence, and that asked for relief that could possibly be granted? Note that no court is going to throw out thousands and thousands of ballots executed by legal voters following the procedures described by the lawful election adminstrators. For example, there is no way that Wisconsin is going to throw out all the absentee ballots requested on line in a procedure that had been long implemented with no complaint from any party.

          I think it’s pretty unhinged to think that the SC court is going to allow Texas to decide the legality of all the election laws in all the states when each state has it own election regime in place in accordance with the US Constitution, the State’s constitution, legally enacted legislation and executive/agency authority exercised in accordance with lawfully enacted laws of the state.

          1. “I think it’s pretty unhinged to think that the SC court is going to allow Texas to decide the legality of all the election laws in all the states ”

            I think it’s pretty unhinged to think that’s what Texas is asking for, instead of the Supreme court deciding it.

            1. That’s because you’re not paying attention.

        2. Oddly enough, the only person I’ve heard about the witness being a stripper from is Jimmy the Dane.

          On the other hand, I _have_ read reporting about how she claims to have a degree from a school that has no record of her enrollment and claims to have worked for a company that has no record of her having worked there, and interviews where she says “The Obamas funded that Wuhan lab to make COVID” and that she doesn’t believe in advisories from public health authorities about COVID but “I would take it seriously if it came from Trump, because Trump cares about American lives.”

          Whether or not she has ever been a stripper is not relevant to her testimony. On the other hand, the fact that she has a documented penchant for lying and spinning elaborate conspiracy theories, and is singularly devoted to Donald Trump, does seem relevant to weighing her claims of elaborate conspiracy theories as part of testimony designed to help Donald Trump, don’t you think?

          1. What’s wrong with strippers anyway?

            1. Beats me. If you’re in your twenties and can legally make a couple thousand bucks in a night without doing any harm to anyone, I’ll be the last one to tell you that you shouldn’t.

              1. Twenties? Ageist. My retirement plan is to open a strip club called MILF Island (after the fictional TV game show from 30 Rock), where no one can get up on the pole unless she is 40 or over.

        3. Is it really surprising that at least 30% of Americans are idiots? I mean, this isn’t Lake Wobegon…

    4. “a really good way to make them double down on their beliefs.”

      Clingers are welcome
      to get as daft as they wish;
      their betters don’t care

      1. So this all proves my point…

        1. You’re not really trying to make a point, are you?

          You appear to be crafting a story for how it’s all someone else’s fault for why Trump was cheated and no court came to his rescue. Maybe even a justification for violence resulting from this unproven cheating.

          While I don’t know you and don’t assume you personally would be violent, I do direct your attention to this bit of loony from the Arizona GOP.

          “I am willing to give my life for this fight”

    5. the peanut gallery just simply refuses to read the filings, affidavits, or other evidence.

      Every time I read one, and try to check it out, I find it’s a bunch of dishonest BS. So yeah, I’m done checking. I just assume, based on that experience, that the claims are dishonest.

      If someone has real, evidence-based, claims, I’ll listen. But I’m not going to do your work. Your side has too much of a habit of making shit up.

    6. Jimmy, have 18 states *ever* sued four other states? For *anything*…

      I think this is unprecedented, and you’d think that people would stop and pretend to listen.

      And as to 35%, it’s 25% in Massachusetts and I suspect significantly higher in states supporting Trump.

      1. You don’t know what an amicus is, do you?

        It’s not joining a lawsuit as a party.

        There are plenty of cases with 18 state amici.

        1. Perhaps you spoke too soon. Six states have asked to join the suit

          MOTION OF STATES OF MISSOURI, ARKANSAS, LOUSIANA, MISSISSIPPI, SOUTH CAROLINA,A ND UTAH TO INTERVENE AND PROPOSED BILL OF COMPLAINT IN INTERVENTION

          https://www.supremecourt.gov/DocketPDF/22/22O155/163322/20201210115500103_2020-12-10%20-%20Motion%20to%20Intervene%20and%20Proposed%20Bill%20of%20Complaint%20-%20Final%20With%20Tables.pdf

          1. What particularized injury in fact do these six states claim?

    7. The problem with the Trump Campaign’s legal efforts is not that their claims are being ignored.

      It is that while they have the strongest and most shocking of claims at the podium of a press conference, all they have left in their brief case by the time they get into a court room is petty and mendacious stuff that should never be allowed to overturn an election.

      That’s not the fault of observers.

  15. Liberal argument: “It’s Chinatown, Jake.”

  16. Breaking: California Petitions SCOTUS to eject Texas; or in the alternative, just Ken Paxton

    1. To where? (Into the sun, one hopes.)

  17. One womders to what extent these 18 attorneys general want to file this brief, and to what extent they are terrified of what Trump’s muscle could do to them if they refuse to go along.

    And not necessarily just declaring them traitors, denouncing them, and funding challengers in the primaries. The NY Times reported that the Pennsylvania house leadership changed its position signed the petition asking Congress to overturn Pennsylvania’s electoral votes because they were afraid someone would bomb their houses if they didn’t.

    It seems people are feeling terrified.

  18. Idle thought: even if there are four for a grant, there could still be five for quickly certifying the question of violation of state law to the appropriate state courts. Did it violate (1) state law; (2) state constitution; (3) is a violation of state statutory law on the subject a per se state constitutional violation; (4) is there really a Santa Claus; &c, &c.

    Mr. D.

    1. This is not a petition for writ of certiorari, which requires four to grant. It is a motion for leave to file a bill of complaint, which I surmise requires a majority.

  19. Only the Jews and the Chinese government want this case dismissed.

    1. And the bicycle riders.

  20. Will this post be updated to comment on the Defendant states´ responses?

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