Election 2020

Are Some of the State Attorneys General Supporting the Texas Election Suit Getting Cold Feet? [UPDATED in Light of Ohio Filing]

17 states submitted a brief supporting Texas Attorney General Ken Paxton's effort to prevent the selection of electors in four states, but only 6 joined today's motion to intervene. [Update: Meanwhile, Ohio files a brief that's worth reading.]

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Six states attorneys general, led by Missouri AG Eric Schmitt, have moved to intervene in Texas v. Pennsylvania, the lawsuit filed by Texas Attorney General Ken Paxton that seeks to prevent the selection of presidential electors based upon the November election results in four states (Pennsylvania, Georgia, Wisconsin, and Michigan). Yesterday, 17 states, also led by Missouri AG Schmitt, filed an amicus brief in support of the Texas suit. I wrote about that filing here.

There are a few notable things about today's filing. First and foremost, it is notable than only six of the states that joined yesterday's amicus brief (Missouri, Arkansas, Louisiana, Mississippi, South Carolina, and Utah) were willing to join today's motion to intervene and join the Texas Bill of Complaint. This suggests that some of the state AGs who were willing to say that the claims raised by Texas are sufficiently serious to warrant the Court's attention were not willing to actually endorse the substance of those claims. Perhaps this indicates there is only so far they are willing to go to virtue-signal their support for the Trump tribe. (Yesterday's filing from Arizona can be viewed in a similar light.) In the alternative it could simply represent discomfort with some of the claims this new briefing supports, which leads to my next point.

In seeking to intervene, the states did not submit their own proposed Bill of Complaint. Rather, they seek to join the Bill of Complaint submitted by Texas, as modified by the Bill of Complaint submitted on behalf of Donald Trump. As their Bill of Complaint in Intervention states:

The Intervening State Plaintiffs adopt by reference and join in the Bill of Complaint submitted by Plaintiff State of Texas as modified by President Trump's Bill of Complaint in Intervention in all aspects, including the statements of Jurisdiction, the Parties, Additional Facts, Count I (alleging a violation of the Elector's Clause) and the Prayer for Relief.

In other words, these six states are endorsing everything in the Texas and Trump Bills of Complaint, including the absurdly stupid statistical claims, the misrepresentation of what occurred in other Supreme Court litigation concerning absentee ballots in Pennsylvania, and the Trump's briefs uncited claims about Georgia absentee ballot rejection rates that are directly refuted by the data released by the (Republican) Georgia Secretary of State, in addition to the underlying legal theory that states can sue to challenge the lawfulness of election rules and their administration in other states.

All in all, it is a sad showing from the attorneys general of these six states.

UPDATE: As I was composing this post, Ohio Attorney General Dave Yost filed a brief in support of neither party that endorses the principle that state legislatures are uniquely authorized to control the manner of selecting presidential electors, but opposing the relief sought by Texas. It is definitely worth a read.

To be crystal clear about the Ohio brief, it does not support the Texas filing, but it does support the claim that state legislatures set the rules governing the manner in which presidential electors are selected, and this does place some limits on the extent to which state courts or executive branch officials may make unauthorized changes to state election rules in presidential elections. Moreover (and this is a key point), it limits the sort of relief that federal courts can offer as well.

From the Ohio brief:

Ohio has previously argued that this Court has mandatory jurisdiction in original actions, and that it therefore lacks authority to deny leave to file bills of complaint. See Arizona v. Sackler, No. 22O151, Br. of Ohio and amici States (Sept. 26, 2019). Its amicus brief in this case will address something else: the proper understanding of the Electors Clause, U.S. Const. art. II, §1, cl.2; the incompatibility of the Clause and the remedy that Texas seeks; and the need for a Supreme Court ruling, at the earliest available opportunity, on the proper application of the Clause to cases in which state courts or state executive officers alter election rules in presidential elections. . . .

Article II of the Constitution directs that "[e]ach State shall appoint" presidential electors "in such Manner as the Legislature thereof may direct." Art. II, §1, cl.2. Whatever "the Legislature thereof" means, it does not mean "the courts thereof." Thus, when state election codes dictate the manner for appointing presidential electors, state courts must respect the legislature's work: they may not change the rules by which electors are chosen through judge-made doctrines or by rewriting statutes in the guise of interpretation. See Democratic Nat'l Comm. v. Wis. State Legislature, 592 U.S. __, slip op. 9 n.1 (2020) (Kavanaugh, J., concurring); Bush v. Gore, 531 U.S. 98, 120 (2000)
(Rehnquist, C.J., concurring); see also Republican Party of Pa. v. Boockvar, 592 U.S. __, slip op. 1 (2020) (Statement of Alito, J.). This does not mean that state-court interpretations of state law are entitled to no deference. But at some point, a purported  interpretation" becomes "not a construction" of the relevant text, "but a rewriting of it." State Bd. of Equalization of Cal. v. Young's Market Co., 299 U.S. 59, 62 (1936).
The Electors Clause prohibits such rewritings in the context of presidential elections.

Precisely because Ohio holds this view about the meaning of the Electors Clause, it cannot support Texas's plea for relief. Texas seeks a "remand to the State legislatures to allocate electors in a manner consistent with the Constitution." Br. in Support of Motion for Leave to File 16. Such an order would violate, not honor, the Electors Clause. Federal courts, just like state courts, lack authority to change the legislatively chosen method for appointing presidential electors. And so federal courts, just like state courts, lack authority to order legislatures to appoint electors without regard to the results of an already-completed election.

What is more, the relief that Texas seeks would undermine a foundational premise of our federalist system: the idea that the States are sovereigns, free to govern themselves. The federal government has only those powers that the Constitution gives to it. And
nothing in the Constitution empowers courts to issue orders affirmatively directing the States how to exercise their constitutional authority. . . .

Imagine that! A state AG filing that actually shows an understanding of federalism!

The brief makes another important point:

Although Ohio does not endorse Texas's proposed relief, it does endorse its call for a ruling on the meaning of the Electors Clause. More precisely, Ohio urges the Court to decide, at the earliest available opportunity, whether state courts and state executive actors violate the Electors Clause when they change the rules by which presidential elections are run.

Of course, this issue need not be resolved in this case. There are multiple pending cases from Pennsylvania that raise this issue more cleanly (see, e.g., here, here, and here). These other cases would provide the Court with the opportunity to clarify the law so as to help avoid these sorts of controversies in future years. While some might argue the Pennsylvania case are moot, because they cannot affect the selection of Pennsylvania's electors, let along the result of the presidential election, I would argue that the current controversy shows they raise questions capable of repetition, yet evading review.

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  1. Adverbs and adjectives are not persuasive, like absurdly stupid. They just convey intellectual frustration and resort to personal attack.

    1. Since you appear to be new to the internet, let me point out that the words “absurdly stupid” are underlined, which means that you can click on them and be taken to a page that explicitly lays out the argument why the claims are “absurdly stupid”.

      You’re welcome.

      1. Hey, he forgot to use ALL CAPS.

  2. “All in all, it is a sad showing from the attorneys general of these six states.”

    Moving away from the legal merits (as there are none), this is really an interesting issue to me.

    Essentially, we are seeing the American political equivalent of swearing fealty to Trump. As such, this is a rational choice in some ways by these (political) AGs.

    In effect, they believe that the benefit of displaying loyalty over competence will be rewarded politically. In effect, the GOP will be, for a sufficient period of time, a party of Trump. You see similar things playing out everywhere (look at this blog- notice some professors are correctly observing the legal merits of the challenges, and some professors are actively avoiding the topic despite normally posting at least 5 times per day about anything and everything).

    And they could be right! Whoever cozies up to Trump the most … will have an advantage with “the base,” right? Because what is the mechanism for punishing them?

    I am seeing the re-alignment even at the level of local politics where I am at. A lot of the “chamber of commerce” GOP types are leaving the GOP, while a lot of new types are entering it. It’s definitely a re-alignment of types (which can be good), but the identification with an individual rather than policies … not so good.

    1. “In effect, they believe that the benefit of displaying loyalty over competence will be rewarded politically. In effect, the GOP will be, for a sufficient period of time, a party of Trump. You see similar things playing out everywhere (look at this blog- notice some professors are correctly observing the legal merits of the challenges, and some professors are actively avoiding the topic despite normally posting at least 5 times per day about anything and everything).”

      Spot on.

      1. It continues: New amicus brief from 106 Republican House members in support of Texas’ bid to overturn President-elect Joe Biden’s win in the Supreme Court.
        https://twitter.com/johnkruzel/status/1337135543373733889

        This rot is deep.

        1. It’s rotten all the way down.

        2. Yes, and it’s also an example of why some judges are quite skeptical of amicus briefs. I haven’t looked at this one yet, but the odds of it saying anything new or interesting (let alone correct) are about 1 in 1 quadrillion. It’s just a way to register one’s support. Which is not helpful to a court.

    2. “In effect, they believe that the benefit of displaying loyalty over competence will be rewarded politically.”

      True, but that is an incredibly dicey proposition. Trump’s loyalty to his minions is capricious at best. The track record is that you do much better if you have the goods on him.

      The mob that supports Trump is equally mercurial. Look at what happens to Republican officials who just want to follow the law and do their jobs honestly. If the result from that isn’t what they wanted they get death threats and armed idiots showing up at their homes.

      Yet those officials will still vote Trump and support the party, not realizing that the party is rotten to the core. They believe that they are the core and they are not.

    3. As you suggest, there is no Republican party now. It’s the Trump party. He owns it and will not let it go.

      Current member of the party must kiss his ring of be driven out. And by “kissing the ring” it means doubling down and agreeing with whatever he says, no matter how “absurdly stupid”.

      A striking display of both cowardice and intellectual/professional dishonesty on the part of the six attorneys general. Expect the same from other Republicans.

    4. You are seeing a realignment similar to what happened with FDR, and the Jacksonians leaving the Democratic Party.

      Now what would have happened if the Republicans had rigged the 1936 election and put in Alf Landon as Faux President?

      1. Dr Ed 2….The election of 1820 is a better historical analogue to what we have today. History never repeats, but it does rhyme.

        1. 1820? Monroe essentially ran unopposed…

          Are you sure you didn’t mean 1824? And that galvanized Jackson’s support and led to the Jacksonian Democracy.

      2. Nobody rigged the election, you jackass.

    5. I don’t totally agree with the loyalty to Trump explanation. It obviously partially does motivate some of these actors, particularly the most craven personalities. But I think explaining this moment as pure short-term political maneuvering to curry favor with the current leader of the party masks the darker explanation: these AGs and everyone who supports this effort believe in what they are doing.

      Maybe they don’t actually buy into the idea that there were millions of fake ballots, or there is a secret German server that has proof of vote switching, or that the chances of Biden winning are 1 in a quadrillion.

      But what they do buy into is the idea that votes for Democrats don’t count, particularly in the states that aren’t part of the “coastal elite” and therefore it is perfectly acceptable to ask any court to declare Trump the winner. Particularly the Supreme Court which they made sure did not have a majority of Democratic Justices. It doesn’t matter what the theory is, or what it means for federalism, or the fact that some of the things they complain their states also do. Republicans are the only legitimate exercisers of power therefore, it doesn’t really matter if they get more votes or not.

      Adam Serwer put it like this today:

      “When they say the 2020 election was stolen, Trumpists are expressing their view that the votes of rival constituencies should not count, even though they understand, on some level, that they do. They are declaring that the nation belongs to them and them alone, whether or not they actually comprise a majority, because they are the only real Americans to begin with.”

      And this has been years in the making. It’s why the current GOP leader is who it is in the first place.

      1. I think it’s slightly more complicated than that.

        For example, there is definitely an undercurrent of “Votes from urban areas (ahem, “urban”) don’t matter” that are papered over now with, “Oh, urban votes are fraudulent, not like rural votes that can’t be!”

        And there is certainly some level of QAnon / Trumpy mania that you are seeing; but the better explanation is pure, political cravenness.

        Easy example- Ted Cruz. You know he hates Trump. Despises him. Trump called his dad a murderer and his wife ugly. And you know Ted knows a little about the law. But Ted will bend over and take it from Trump so long as it improves his political prospects.

        The real problem isn’t the people who don’t know better; it’s those who do know better.

        1. what they do buy into is the idea that votes for Democrats don’t count, particularly in the states that aren’t part of the “coastal elite” and therefore it is perfectly acceptable to ask any court to declare Trump the winner.

          I agree with LTG on this, and with Loki that somehow, to the GOP, urban votes should count less than rural votes. It is plain as day in their attitudes, policies, and very much in a lot of the comments here.

      2. “But I think explaining this moment as pure short-term political maneuvering to curry favor with the current leader of the party masks the darker explanation: these AGs and everyone who supports this effort believe in what they are doing. … But what they do buy into is the idea that votes for Democrats don’t count,”

        Aside from the “darker”, you started out promising: Maybe this isn’t pretext.

        But then you had to invent a nasty thing for them to believe in, in place of the obvious: That they believe election laws ought to be written by legislatures, and obeyed by everybody else. And that it’s really, really bad if people get the idea that they can just ignore any election law they think isn’t a good idea.

        1. You think the attorney general of a state where voting rules were changed by state officials in the run-up to the election is suing another state where voting rules were changed by state officials in the run-up to the election, but where voters chose the guy in the other party, and trying to get the choice of those voters thrown out, because he cares deeply about state officials not changing voting rules in the run-up to the election?

          I mean, if you really want to put your flag in the ground somewhere…

        2. I’m not inventing a nasty thing they believe in. They believe that the votes for Democrats shouldn’t count. That’s why they’re not suing North Carolina. Or Texas which had multiple election related orders from Abbot.

          You keep ranting about obeying election law but are ignoring literally every other aspect of law these suits violate:

          Federalism
          Standing
          Laches
          Mootness
          The right to vote
          Standards for injunctive relief
          Rule 11

          Indeed much like these people don’t believe Democratic votes are legitimate, you don’t believe laws that don’t give you your preferred outcome are legitimate. Which is why you’re probably going to ignore what I’m saying as if it doesn’t matter. Fortunately it does actually matter to the people who decide these things.

  3. As a legal conservative I am appalled, and I think that term is an understatement by the radical rationale put forth by the plaintiffs and would be plaintiffs in this endeavor. They seek to expand the scope of the Supreme Court beyond anything ever considered by those who have asked the Court to do things like legalize same sex marriage. If they succeed they will have established the right of any state to challenge the lawful and legal (under state law) administration of any action by another state.

    Even greater is the proposition that an individual, in this case a candidate for the Presidency, may act as a plaintiff in a cause of action against a state using the Supreme Court as a court of original jurisdiction. Such action proposes to de facto amend the Constituton regardless of the adherence to either originalism or textualism.

    The spineless plaintiffs deserve to be called out for what they are, individuals who are trying to overturn a presidential election by endowing the Supreme Court with the power, authority and logic(?) to do so. It is difficult to imagine a greater threat to democracy.

    And kudos to Mr. Adler, for his courageous calling out of these people for what they are.

    1. So we are supposed to ignore sedition?

      1. No; as PA argued in its just filed brief:

        “The Court should not abide this seditious abuse of the judicial process, and should send a clear and unmistakable signal that such abuse must never be replicated.”

        1. I’m reading through it now. Wow, that is SCORCHING.

          The preliminary statement alone should by Ken Paxton’s obituary.

          1. I thought the PA response was generally very good, with one big exception. I thought the mootness argument was misplaced. Why didn’t they focus on laches? Even if TX could overcome the standing argument, laches should be a slam dunk, especially as regards laws and decisions made months before the election. They sorta indirectly argue laches, and mention it elsewhere, but I would have placed if front and center, and just made some minor reference to mootness.

            1. Because they are concentrating on it as a response to the motion for leave to file the bill for complaint, I am assuming.

              Laches , as opposed to standing and mootness, is an equitable doctrine that would not properly be a grounds to deny the motion for leave (but would be available later), as such, they alluded to it without bringing it front and center. They twice say the claims are barred by laches, which seems obvious, and this also goes to the reasonable reliance of the millions of voters.

              That’s my preliminary thought.

              1. Are you sure that laches is unavailable/inapplicable at this stage? This is a genuine question — this sort of litigation procedure is way out of my wheelhouse.

                1. That’s why it was my preliminary thought. I have had exactly ZERO Supreme Court original jurisdiction cases. 🙂

                  But laches is an equitable affirmative defense, not an issue which either goes to the court’s jurisdiction (leave to file complaint), goes to your claim, or is strictly relevant to the issues here.

                  I think it is proper to refer to the complaint being barred by laches (as it would be), but procedurally to end it now, you’d want it to be moot or lack standing or otherwise be barred (as they correctly argue at the beginning that it does not meet the original jurisdiction requirements). But I’d have to think about it for a while.

                  1. Fair enough.

                    Laches seems to have nuked a bunch of the other cases at the pre-trial stage, so I wasn’t sure how the procedural posture would change things here.

                    1. Most of them, IIRC, were dealt with as expedited hearings in the elections context, which would allow for arguments and factual development (however brief) for laches.

                      That said, Wisconsin and Michigan both make it slightly more central.

                      I’d have to say that in terms of persusasiveness,

                      Penn > Wisconsin > Michigan

                      Wisconsin has a somewhat more traditional approach, which helps it. I prefer Penn’s style for this particular case (it will be ill-suited to most).

                      Michigan? Eh….

                    2. “Michigan? Eh….”
                      _______________

                      “Questions Presented” and “Jurisdiction” sections?

                      Something tells me there was only one form in the AG Office’s “Supreme Court Pleadings” form file.

          2. “The preliminary statement alone should by Ken Paxton’s obituary.”

            You mean after Ken Paxton gets beaten to death on the wrong end — from multiple perspectives — of a prison fight over a ramen packet?

            It would be wrong to hope for that.

            It is, however, reasonable to that hope Paxton dies in prison at age 94, working for 38 cents an hour cleaning toilets until his final day.

    2. Why not?

      If the Supreme Court could come up with some rationale or other for ordering same- sex marriage, why can’t it come up wifh some rationale or other for ordering this?

      What’s the difference?

      You feel really strongly about something, then constitutional text, history, the limited role of federal courts, blah blah blah blah blah blah, yadda yadda yadda yadda yadda, all that just doesn’t really matter, does it? It’s not like they’re going to stand in the way of your getting what you want. Just put on your robes and say the magic “the constitution says so” and you’re good.

      Nobody really cares about what the reasoning for Roe v. Wade and all those other cases was, do they? ll that matters is the result.

      Same here.

      1. Disaffected, demoralized bigots are among my favorite culture war casualties.

        Open wider, clingers. Why not make your loss in the culture war easier to endure?

  4. Do the six prospective intervenor states claim a particularized injury in fact? If not, they lack Article III standing.

    1. Presumably they have standing to the same extent that Texas does.

      1. I am thinking the Supreme Court should take this case, given the sheer number of states, members of Congress, etc.

        I would hold oral argument.

        I would first ask the plaintiff states if it would be an acceptable remedy if the electoral votes of states that deviated from the legislatively prescribed appointment were simply thrown out without replacement If the Supreme Court has the power to undo the certification, but not the power to order a state legislature to appoint electors itself, would what it could do be an adequate remedy? After all, the Supreme Court recently held the federal government as a whole lacks the power to order a state legislature to enact specific legislation.

        If the answer is yes, and I suspect it would be, I would then point to the various modifications and interpretations that Texas executive and local authorities made of its election code. (And I would strongly advise some enterprising group of law professors to file an amicus brief pointing these deviations out in some detail.)

        Would Texas have a problem if, as a necessary part of the remedy, its electoral votes were thrown out?

        I would then be very, very curious to hear Texas’ answer.

  5. Other interesting news.

    So on the Facebook lawsuit, 48 attorneys general. 46 states + Guam and DC.

    That does not bode well for Facebook. In today’s partisan and polarized times, getting 46 states to agree that water is wet is nearly impossible.

    (Side note- Alabama, Georgia, South Carolina, and South Dakota … what’s up, yo?)

    1. If Facebook goes away, what will the middle-aged women of America do? Won’t someone please think of the middle-aged women?

  6. “And nothing in the Constitution empowers courts to issue orders affirmatively directing the States how to exercise their constitutional authority. . . “

    Ummm, isn’t the 14th Amendment part of the Constitution?

  7. The states have only contingent authority to conduct the time, manner and places of elections for national candidates subject to oversight and alteration by the Congress at any time – before, during or after an election.
    The Twelfth Amendment sets forth the procedures for the Congress to choose the President and Vice President if it deems State Electors corruptly or erroneously selected for any reason.
    My personal opinion is for the Congress to elect Trump Pence and them impeach them for incompetence in the administration of justice in election laws. Failing that the most conscientious members of Congress should resign if election reforms are not enacted by June 30, 2021.
    What I think will actually transpire is more absurd than I can imagine at this time.
    Watching on CSPAN as a Republican Congressman from Texas pleads for the Supreme Court to adjudicate the Presidential election. This man is not obviously blind so he must be illiterate and unable to read the Constitution he claims to revere which clearly states the Congress’ exclusive authority to adjudicate disputed elections of federal (national) candidates including the Presidency. The Constitution charges the Congress with the power AT ANY TIME to alter or amend by law state election regulations and to set aside results from any state which the Congress deems illegitimate and unconstitutional.
    Today’s Republicans may be even more unprincipled than the ones I abandoned 49 years ago to help start the Libertarian party.

    1. nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

      By rigging the election, they denied persons living in the rural areas the “equal protection of the laws.” Isn’t this exactly the basis of _Baker v. Carr_???

      1. Haha, Ed holds the Electoral College unconstitutional.

      2. Dear Dr. Ed: You write “By rigging the election, they denied . . . .” We’ve been waiting since November 3 for actual evidence that the election was rigged as you claim. Maybe now would be a good time to share with us what you have instead of making bald assertions.

  8. The Texas AG has been controversial from the beginning, including indictment for securities fraud and turmoil in his office.

    In most states the AG is an independently elected official, I think all of the AGs joining this are elected. In some states the AGs are term limited. They are also in many states looking for higher office, usually the governorship.

    These high profile filings help their name recognition and if in line with the majority of the states population help their political cause. I suspect more than anything else that is what is driving this.

    1. Or maybe they are patriotic people concerned about what is a very clear coup attempt.

      1. “When they say the 2020 election was stolen, Trumpists are expressing their view that the votes of rival constituencies should not count, even though they understand, on some level, that they do. They are declaring that the nation belongs to them and them alone, whether or not they actually comprise a majority, because they are the only real Americans to begin with.”

        This is you.

        1. Unironically true, LawTalkingGuy.

          Voting Democrat is not the act of an American loyal to America. The country is infested by people who are given the privilege of participating in our political process yet have absolutely no resemblance to Americans in values, and furthermore vote specifically to make change America from what made it America into something else.

          It’s not about how someone wins, it’s about who benefits. Trump wins = America benefits. Biden wins = America loses. If you’re here pushing the narrative that Biden legitimately won the election and that the Republicans are bad awful people for doing anything and everything in their power to stop him from taking office, then you aren’t a real American. You’re either a commie traitor or somebody who’s IQ is so low they might as well be.

      2. I agree that there are patriotic republicans, elections officials in Georgia and Arizona, for example, who have gone above and beyond the call of duty, and who have demonstrated extreme courage despite the crazy masses and the death threats …

        …and who have prevented a very clear coup attempt by President Trump, and they should be lauded.

        This is what you were talking about, right?

    2. The Indiana AG lost his primary and will be replaced by another Republican in January.

  9. If Arrow’s theorem is valid does that morally justify secession? IOW, if all elections are decided by a dictator voter, why accept the result?

  10. We were all expecting this. I mean, c’mon …

    Finally, if original jurisdiction is allowed, this type
    of litigation will crowd the Court’s docket every four
    years. Given the global pandemic, many States were
    forced to modify their election process, including mailin voting procedures. Texas did. And most, if not
    every, state has been sued during this election. Texas
    has. See e.g. Hotze v. Hollins, 20-20574, 2020 WL
    6440440, at *1 (5th Cir. Nov. 2, 2020); Pool v. City of
    Houston, 978 F.3d 307 (5th Cir. 2020); Richardson v.
    Texas Sec’y of State, 978 F.3d 220 (5th Cir. 2020); Texas
    Democratic Party v. Abbott, 978 F.3d 168 (5th Cir.
    2020); Mi Familia Vota v. Abbott, 977 F.3d 461 (5th Cir.
    2020); Texas League of United Latin Am. Citizens v.
    Hughs, 978 F.3d 136 (5th Cir. 2020); Texas All. for Retired Americans v. Hughs, 976 F.3d 564 (5th Cir. 2020).
    And like Pennsylvania, Texas has prevailed in a large
    majority of these challenges. But if such failed or frivolous lawsuits are sufficient to raise a question about
    the integrity of a state’s election—as Texas argues—
    then such an action could be filed against any state in
    every presidential election.

    1. “Finally, if original jurisdiction is allowed, this type
      of litigation will crowd the Court’s docket every four
      years.”

      Not necessarily. If they adopt the reasoning of the Ohio Amicus, I don’t think that they need to worry about a flood of original jurisdiction cases over elections.

  11. 20 states and 2 territories and DC have filed amici in support of the defendants (PA, WI, GA, and MI).

    However, Missouri, Arkansas, Louisiana, Mississippi, S. Carolina and Utah have joined Texas as plaintiffs. They are all in, as it were. Whichever conspirator earlier today thought they were just posturing for the base for 2022 or some such, is quite wrong.

    Meanwhile, only Alaska, Idaho, Iowa and Kentucky, NH, and Wyoming have taken no position. Expect them too. I bet only NH joins the defendants and the rest join the plaintiffs.

    Things are getting interesting indeed.

    1. Iowa has had the same Democratic AG since 1995.

      1. This is moving to another thread, but I would not be surprised if the remaining states sit this out.

    2. Fun fact: Check the correlation between a state’s (1) educational attainment and (2) position on Texas’ emergency pleading.

        1. It’s easy to laugh at these jerks, but the substantive point is important. The states pressing these silly claims are the states inhabited and controlled by superstitious rubes, Republicans, uneducated bigots, conservatives, disaffected losers, and right-wing culture war casualties. The modern, educated, reasoning, accomplished, productive states take the other side of this.

          1. Copying and pasting your own material is really lazy, “Reverend”. You could at least have the mental energy to use a thesaurus and mix it up every now and then.

    3. Utah’s AG is out of step with his state’s governor and governor-elect.

  12. Rasmussen Poll: “How likely is it that Democrats stole votes or destroyed pro-Trump ballots in several states to ensure that Biden would win?”

    Democrats – 30% – 20% say Very Likely (VL)
    Unaffiliated – 39% – 29% say VL
    Republicans – 75% – 61% say VL

    Note, that even prior to the actual election, “In fact, just 22% of Americans believe this year’s presidential election will be “free and fair,” according to a new Yahoo News/YouGov poll.”

    How many here are willing to admit, that when almost 1/3 of *Dems* think that the election was very likely marked by fraud, that we’re not in kookyland for talking about it?

    https://townhall.com/tipsheet/leahbarkoukis/2020/12/01/30-percent-of-dems-think-their-party-cheated-n2580862

    1. You had us at Rasmussen Poll.

    2. Oh, so we’re accepting polls as solid evidence now?

      So we can all agree that Biden won because he was the overwhelming favorite to win, according to polling, and the lawyers can all go home?

    3. A lot of ridiculous beliefs are popular.

    4. The problem with a simple-minded question like that is it completely hides all the interesting parts. This would be much better:

      “How likely is it that all the changes to voting laws made in response to the pandemic made it extremely difficult to determine precisely who won the Presidential election?”

      Follow-up question:

      “Do you want the deadlines for declaring the winners to be left as they are?”

      1. Small problem with your follow up question: The deadlines for declaring the winners in the Presidential election are baked into the constitution and changing them would require constitutional amendments.

  13. Watching the SCOTUS docket, and boy, it is getting crazy. And the crazies are coming out.

    Now we have the proposed intervenors (THANK YOU THOMAS MORE SOCIETY!) claiming that Zuckerburg funneled 350 million dollars to “primarily urban election officials”

    There is some grade-A crazy going on.

    1. Zuckerburg funded a foundation that offered grants to local elections officials that met certain criteria before the election. Apparently primarily Democratic areas applied for those grants. This is a constitutional issue because reasons.

  14. This case could have been captioned “The Federalist Society vs. The Reality-Based World.”

    Carry on, bigoted, superstitious, obsolete clingers. But just so far as your betters permit, of course.

    1. I don’t think this is coming from the Federalist Society people. Several of the judges who turned down other lawsuits challenging election results were Federalist Society recommendations.

      1. The dumbass side of these cases would qualify as a Federalist Society convention.

  15. So if a state legislature passed an election law that violated the states constitution there would be no recourse to the state courts?
    Because the constitution says legislatures set the rules?
    I would think not, or much of what all courts do at state and federal levels would be irrelevant
    and state executives have no role?

    ditto

    I think the legislature could have sued if they chose before the election, but they did not, tacitly agreeing

    If for instance the PA legislature had sued before the election over these issues, then it would be a lot more interesting right about now

    Now it is just waiting to see if Mitch McConnell is going to allow a clown coup or not

  16. Most courts can sanction parties who file frivolous cases. Can the Supreme Court do so as well?

  17. Are the Trump-appeasing bigots tired of winning yet?

    America’s better citizens have not tired of slapping clingers silly in courthouses across the nation. Dealing with the nonsense can be tiresome, but putting right-wing losers in their place never gets old.

    Enjoy the Electoral College vote and the inauguration, everyone! I hope everyone has a great, patriotic beer selected for January 20.

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