How Did The Trump Texas Lawsuit Go Off the Rails?

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10 mins read

Let me count the ways.

The document is here. This is the lawsuit in which the Attorney General of Texas, Ken Paxton, is suing Wisconsin, Pennsylvania, Georgia, and Michigan in the Supreme Court.

It didn’t take the Supreme Court long to refuse to hear the lawsuit on the grounds that Texas didn’t have standing to complain about how other states conducted their election. Thomas and Alito said that they felt compelled to hear the case based on the fact that the Constitution gives the Supreme Court “original jurisdiction” over disputes between states. However they also said they would deny the remedies sought. So it’s a huge “no” in Trump’s face.

Ordinarily, the Supreme court has “appellate jurisdiction.” They hear appeals. But with disputes between states, the trial actually happens at the Supreme Court (a rare occurrence.) With appeals, it takes only four justices to decide to hear a case. With original jurisdiction, five are required. That means that for Texas to get the green light (you can present your case at the Supreme Court) five justices have to want to hear the case. 

Given that all nine justices rejected the Pennsylvania case, it is not surprising that the justices refused to hear this case.

This case made the same mistakes as almost every other case brought by Republicans in their bizarre and chilling attempt to overturn the 2020 election.

First mistake: Asking for the wrong remedy. The lawsuit alleged that:

And: 

In other words, the lawsuit alleged that state election officials violated equal protection and usurped the power of state legislatures to make rules. There is no accusation that any voters committed fraud. The complaint is in how the states carried out their elections.

Even if the allegations were true, this is an absurd remedy. (Plus it’s not true.) These same accusations have been rejected by countless other courts. The remedy punishes voters who did nothing wrong by taking away their right to vote.

Analogy: “The bathroom tile is crooked, so pull down the building.” Plus, the tile isn’t crooked.

Next problem: The lawsuit, filed on December 8, was untimely.

Federal election law states that election disputes must be resolved by “safe harbor” day, six days before the state electors meet to vote in their state capitals. This year Safe Harbor Day was December 8, 2020. 

Texas (actually, Paxton) tried to get around that by asking SCOTUS to delay the deadline.

Why did they file so late? No doubt because a few dozen similar lawsuits raising these same issues failed, so this was a last, final, desperate measure. 

This brings us to laches, the legal principle that says a claim will not be enforced if a long delay in asserting the right is prejudicial to the opposing party. In this case, filing the lawsuit after the safe harbor date means there is not time to adjudicate the dispute in the lower courts, so the only remedy is to disenfranchise tens of millions of voters. “Dozens of other courts already rejected this claim,” is not a good reason for untimeliness, particularly because the Court prefers these things to work their way up.

Next reason: The evidence is hooey. An example of hooey evidence: “statistical improbability” that Biden won those states:

I’ll bet you didn’t know hooey was a recognized legal term. My mathematician followers on Twitter assured me that the argument is, indeed, hooey.

Next: Standing: The first rule of standing (whether a plantiff is permitted to bring a particular lawsuit) is that the plaintiff must suffer an injury as a result of defendant’s behavior. Paxton’s says Texas voters were harmed when a national election went wrong. Lame. Plus it opens the door to states suing each other over anything. Does Texas really want California suing them over their election laws?

Denying standing was an easy way for the Court to get rid of this case. They didn’t need to give a reason, but they gave this one. It’s clean. It’s easy. And it prevents other people from trying to bring similar lawsuits to the Court.

Here’s where Paxton says Texas has to sue all four states, otherwise they can’t change the outcome of the presidential election.

Q: I was watching a piece on the Texas case regarding Trump’s lawsuit. They explained the case as about signatures and the Constitution forbidding states from not having a system of verifying them. Is there anything in U.S. Constitution that mandates how states conduct elections?

No. The Constitution says that the U.S. Congress can regulate elections, Congress determines the day for the presidential election, and state legislatures are responsible for setting the rules. In fact, the lawsuit alleges that the defendant states (GA, PA, WI, and MI) violated the Constitution because their state officials made decisions that weren’t in the rules. The problem is that these states also have a procedure for resolving disputes, which Texas didn’t honor.

This brings me to another problem with the Texas lawsuit. Texas is asking that the election results in these states be decertified and that the legislatures (which happen to be Republican-led) must select the winner. While the Constitution gives state legislatures the authority to allocate their electoral votes as they wish, every state has laws giving that power to the voters. 

The Supreme Court has also said that the rules can’t be changed too close to an election. Even Kavanaugh in the recent WI case stated the Supreme Court has “repeatedly emphasized that federal courts ordinarily should not alter state election laws in the period close to the election.” Texas is asking that the rules be changed after the election.

Remember back when conservatives complained about judicial activism and federal courts usurping the role of legislatures? Paxton wants the Supreme Court to set down law for all future elections, even though the Constitution gives this power to Congress:

Trust me: “conservative” justices nonetheless have no desire to install a dictator, which is what would happen if Trump was given a second term under these circumstances.

Remember, this Supreme Court recently rejected the concept of “unitary executive theory,” when Trump claimed that neither Courts nor Congress had could interfere with how he choose to run the executive branch.

He demands no oversight. He says “Article II says I can do whatever I want.”

And he asks SCOTUS to disregard it’s own precedent and procedures and overthrow an election based on zero evidence and no cause of action including an inappropriate remedy. 

Speaking of zero evidence, as I was writing this, a federal judge has dismissed Sidney Powell’s election challenge in Arizona saying this: “The allegations they put forth to support their claims of fraud fail in their particularity and plausibility. Plaintiffs append over three hundred pages of attachments, which are only impressive for their volume. . . The various affidavits and expert reports are largely based on anonymous witnesses, hearsay, and irrelevant analysis of unrelated elections. Because the Complaint is grounded in these fraud allegations, the Complaint shall be dismissed.”

If you’re a lawyer, you really don’t want a judge talking that way about the lawsuit you filed. 

[I responded to some follow up questions here.]


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