The Volokh Conspiracy

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Election 2020

Texas AG Files Reply Briefs in Last Ditch Effort to Upend Election Result

If you thought the briefing in Texas v. Pennsylvania could not get worse, you are in for a surprise.


Amicus filings of various sorts continued to pour in to the Supreme Court last night and into this morning, when Texas filed its replies, and now the briefing in Texas v. Pennsylvania is complete. For additional background, here are links to my prior posts on the initial Texas filing, the supporting filings by Donald Trump and 17 other state AGs, and some of yesterday's pleas for intervention and amicus briefs. All of the filings are available here.

Among the filings posted late yesterday were an amicus from #Kraken attorney L. Lin Wood, submitted on his own behalf, asking to submit a never-filed petition for certiorari in another case as his amicus brief, and a brief from Montana Governor Steve Bullock, pointing out that neither Texas nor Trump has sought to invalidate the selection of presidential electors in states that made equivalent changes to voting rules as the defendant states but where Trump prevailed. As Bullock's brief notes, this underscores "that this action is less about election integrity than it is about attempting to overturn the will of the electorate." [Update: Last, but perhaps not least, this afternoon the Court received a filing in support of Texas on behalf of State of New California and New Nevada State.]

This brings us the Texas AG Ken Paxton's reply–or, rather, replies, as there are multiple filings, including a motion to enlarge the word-count limit a supplemental declaration dated today from Charles Cicchetti, and a new affidavit prepared yesterday from one Lisa Gage.

The first reply brief focuses on rebutting the factual and legal claims made by the four defendant states. The brief starts with the facts, and AG Paxton's choice of emphasis here is quite interesting, as the brief leads with an extended defense of statistical stupidity contained in the initial filing and the Cicchetti declaration (hence the newly drafted supplemental declaration which is attached). Here, the Paxton brief argues "Dr. Cicchetti did take into account the possibility that votes were not randomly drawn in the later time period but, as stated in his original Declaration, he is not aware of any data that would
support such an assertion." In other words, because he does not know anything about the two sets of voters, it was okay to assume they were identical for purposes of assessing the statistical likelihood that they would vote differently. That this is the lead argument in the reply tells you most of what you need to know. (Well, perhaps not, as other parts of the factual discussion misrepresent claims made by defendant states or repeat claims that were considered and rejected in other suits over the past month.)

On the law, the Texas reply essentially argues that the handful of attorneys in the Texas AG's office who were willing to sign on to the brief know more about the election laws of Georgia, Michigan, Wisconsin, and Pennsylvania than do the Attorneys General and Secretaries of State of those various states. It further argues that although state legislatures have "plenary" authority to set the manner in which states select electors, this somehow does not include the authority to authorize the involvement of courts and election agencies, and that the U.S. Supreme Court, not the supreme courts of the respective states, should be the final authority on the meaning of relevant state laws and constitutional provisions. (Yay federalism!)

The other Texas filing, styled as a reply in support of Texas's plea for emergency injunctive relief, is not much better. It does, however, deploy a powerful use of capitalization in the Table of Contents ("Texas IS likely to prevail"). Note that Texas does not have to worry about any of the defendant states responding in kind ("Texas IS NOT likely to prevail") because this is the last brief to be filed.

In this brief, Texas argues that it is not seeking to disenfranchise voters. Rather, Texas argues, "Defendant States' maladministration of the 2020 election makes it impossible to know which candidate garnered the majority of lawful votes." Of course, to the extent this were true, Supreme Court intervention would not be necessary. If the relevant state legislatures concluded that the results of the elections within their states were indeterminate–that the voters had failed to select electors on election day–they could act, but they have not. Here Texas repeats its arguments that federalism requires the Supreme Court ordering state legislatures to act and possibly even hold new elections because Texas does not like how other states have run their elections.

A tidbit: The Texas reply briefs include a longer list of lawyers than did the original filings, but do not include the folks one might expect to see on a state's brief to the Supreme Court. So Texas Solicitor General Kyle Hawkins does not make an appearance, but the Attorney General's Chief of Staff Lesley French Henneke and Deputy Attorney General for Legal Strategy Aaron Reitz both do. (Interestingly enough, it appears from a quick Westlaw search that neither Henneke nor Reitz has submitted legal filings of any sort before, but perhaps I missed something.) It is as if Paxton is requiring all of his staff to go down with the ship.

A final note: We have seen some truly bad legal filings in various 2020 election lawsuits, but we have not–until this case–seen such bad lawyering from offices and institutions known for serious legal work. Texas v. Pennsylvania, however, has been a notable exception, and it is particularly notable to see such bad lawyering from the office of a state Attorney General. Let us hope we do not see much more of this.

[Roll credits]

Post-credits scene: The Austin-American Statesman reports:

Federal agents served at least one subpoena Wednesday on the office of Texas Attorney General Ken Paxton in an ongoing investigation into allegations that Paxton abused his authority by helping a friend and campaign donor. . . .

Federal authorities are investigating claims by former top Paxton aides that he used his position to aid Austin investor Nate Paul, whose offices were raided by the FBI last year. . . .

The issuance of a federal subpoena on a state agency, and especially involving the state's top attorney, is a highly unusual move that likely would have required higher level approval from the U.S. Justice Department. . . .

The allegations about Paxton surfaced in October when the former top officials issued a letter to Paxton saying they asked federal law enforcement authorities to investigate allegations of improper influence, abuse of office, bribery and other potential crimes.