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The Texas Attorney General’s Shameful and Stupid Attempt to Crash the Election

Laughable statistics, unsubstantiated facts, and weak lawyering in the service of Donald Trump.
December 8, 2020
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WASHINGTON, DC - JUNE 9: Texas Attorney General Ken Paxton speaks to reporters at a news conference outside the Supreme Court on Capitol Hill on June 9, 2016 in Washington, D.C. Paxton announced a lawsuit against the state of Delaware over unclaimed checks. (Photo by Gabriella Demczuk/Getty Images)

Here we go again. Another insane lawsuit. Another assault on the legitimacy of the only remaining branch of the federal government that’s still functioning post-Trumpdom: the judiciary.

Today, Texas Attorney General Ken Paxton filed a lawsuit on behalf of the state of Texas against four other states: Georgia, Michigan, Pennsylvania, and Wisconsin. The lawsuit claims that the four defendant states didn’t comply with their own laws for changing how the 2020 election would be held, that it hurt Texans, and that Paxton’s the guy to right that wrong.

Among the fifty (give or take) lawsuits that Team Trump has filed in its vain effort to steal the election from Joe Biden and his voters, this one stands out. Like nearly all of the others, it is sure to fail. But here’s why it’s special.

For starters, Paxton brought the suit by filing a complaint directly in the U.S. Supreme Court. Keep in mind that, for the vast majority of cases, there’s a judicial hierarchy that applies. Civil complaints are filed in the trial court, which is called the “U.S. District Court” at the federal level. That court decides if the claims pass the straight-face test. If they do, that court will allow fact-finding—called discovery—and maybe even eventually proceed to trial, where evidence is heard through witnesses and documents. The process is known as “making a record.” That record gets frozen and sent on appeal. Appellate courts—first, intermediary courts of appeals and, ultimately, the U.S. Supreme Court—review the record for errors. They normally do not hear brand-new evidence.

Enter Paxton’s complaint. It makes a slew of audacious factual allegations that are unestablished and untested. Basically, he argues that the state defendants shouldn’t have allowed mail-in balloting the way they did, and cites “mysterious late night dumps of thousands of ballots at tabulation centers; illegally backdating thousands of ballots,” and videos of “poll workers erupting in cheers as poll challengers are removed from vote counting centers,” among an avalanche of other unsubstantiated and previously repudiated factual claims. (My favorite is the “expert analysis” that allegedly calculated the “probability of former Vice President Biden winning the popular vote in the four Defendant States” as “less than one in a quadrillion, or 1 in 1,000,000,000,000,000.”)

In a routine case, all of these claims would amount to nothing without discovery and hard, verifiable evidence. Bald allegations are not enough to get relief.

To be sure, the Constitution includes a provision that allows the U.S. Supreme Court to hear complaints in the first instance in lawsuits between two or more states. But that provision is rarely invoked, and is aimed at instances where there is no other means of resolving a fight between states some other way. Here, there are plenty of lower courts (as we’ve seen ad nauseam) that Paxton can bother with his baseless claims.

But there’s more. Paxton is asking the U.S. Supreme Court to extend the December 14 deadline on which each state’s electors will cast their slates of Electoral College votes according to the laws of the respective states. He asks the Supreme Court to: “Declare that any electoral college votes cast by such presidential electors appointed in Defendant States Pennsylvania, Georgia, Michigan, and Wisconsin are in violation of the Electors Clause and the Fourteenth Amendment of the U.S. Constitution and cannot be counted.” Paxton would have the Court instead “direct such States’ legislatures . . . to appoint a new set of presidential electors.”

Hear that again: Paxton is asking five unelected justices with jobs for life to cancel the millions of votes legitimately cast in four states, and tell the legislatures in those states to give the electors to Trump. (Even Ted Cruz only wants to wipe out all the votes from just one state.)

This is a wholesale assault on “We the People”—citizens of a country founded on principles of self-government. And it’s an assault on the sovereignty of fellow states. Truly breathtaking.

There are numerous other legal flaws in the complaint, including Paxton’s strained claim of “standing”—i.e., the particularized injury that’s necessary to get before a court—which verges on laughable. Paxton claims that Texas “is acting to protect the interests of its respective citizens in the fair and constitutional conduct of elections used to appoint presidential electors.”

What about the interests of the rest of American voters? And for that matter, what about the interests of Texas voters who chose Biden? Paxton doesn’t seem to bother with them (but then again, let’s not forget that Trump is on a pardon spree and Paxton was indicted in 2015 for felony securities fraud charges but has yet to be tried).

Paxton’s ironic answer to problems of fairness to voters of every stripe? “Our Country stands at an important crossroads. Either the Constitution matters and must be followed, even when some officials consider it inconvenient or out of date, or it is simply a piece of parchment on display at the National Archives. We ask the Court to choose the former.”

Here at last I agree wholeheartedly. The American judicial system exists to resolve legitimate disputes based on facts and law by neutral tribunals. People living in authoritarian regimes can only dream of a world in which politicians do not call all of the shots, arbitrarily, for the sake of power-grabbing and self-preservation. Which is why this monstrosity of a lawsuit—which was clearly crafted by smart, able, learned government lawyers—is shameful.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins). Her latest book is What You Need to Know About Voting—and Why (HarperCollins). Twitter: @kimwehle.