On December 9th, Ken Paxton, Attorney General of Texas unexpectedly filed an absolute gem of a lawsuit against Georgia, Michigan, Pennsylvania, and Wisconsin. Given that it is a state versus state(s) issue the venue of the first audience will be the Supreme Court. It is a narrowly focused procedural suit that complains that:
- Non-legislative actors purported amendments to duly enacted election laws
- There were intrastate differences in the treatment of voters which favored voters in heavily democrat areas
- The appearance of voting irregularities in the defendant states consistent with the unlawful relation of ballot integrity protections within those states.
The cleverest part of this complaint is that Paxton suggests a corrupt election appoints a corrupt vice president who would unfairly adjudicate the senate thereby causing various states harm.
Trump himself has also sought to join the suit as an injured party.
The defendants have until 3:00 EST on December 11th to respond. Additionally, Alabama, Arizona, Nebraska, Arkansas, North Dakota, Florida, Oklahoma, Indiana, South Carolina, South Dakota, Louisiana, Tennessee, Utah, Kansas, Missouri, Mississippi, Montana, West Virginia, and Georgia (who would be, in effect suing itself) have indicated their intention to file Amicus. Ohio is largely expected to assist if the PA GOP V., Boockvar is rolled into the suit due to a commonality of complaints.
For what it’s worth, the Attorney General of Maryland, Brian Frosh, had this to say about the lawsuit:
To make matters even more interesting, Senator Ted Cruz from Texas has agreed to orally argue the case on behalf of the states. This is an astonishing development given the “hammer and tongs” nature of the primary battle between Cruz and Trump 4 years ago. These men clearly disliked each other on a molecular level and their cooperation clearly lends to the optics that this ls less a fight about preserving a president, and more about preserving a republic.
Its anyone’s guess as to what can happen in a court of law, but my extremely armchair wager is as follows:
- Kagan and Sotomayor are likely to side with the defendant states. Nothing in their history suggests anything but that.
- Breyer will likely also side with them but has been known to surprise, and in this case, it will come down to whether the call of the constitutional claim is stronger than disenfranchising voters.
- Chief Justice Roberts is also in this camp, but he has been all over the place with his opinions.
- Thomas and Alito (who have had injunctions related to this election ignored by Pennsylvania) will likely view this as a procedural complaint that has merit. I believe they will side with the plaintiff states.
- Gorsuch and Kavanaugh have a strict view of how to interpret the Constitution and would see the election law changes as an affront to article one, biasing them toward the plaintiffs.
- Coney-Barrett believes in “stare decisis” or let the old law stand. She also has a history of being a Federal absolutist. For these reasons, she will have a dim view of any last-minute changes by fiat meaning a likely 5-4 split decision for the plaintiff states.
It will be interesting to see what kind of relief they prescribe and what happens as a result. Mandating the states allow legislators to send electors is not necessarily a guaranteed win for Trump. For example, Michigan GOP is already on record saying that no matter what their electors will go forward the person who has the most votes (no matter how they obtained them), which does not help Trump. A far better solution, but far less likely, would be to disallow those states from sending electors and causing neither candidate from reaching 270 votes, thereby triggering the congressional selection process.
What are your thoughts? How do you think the Justices will rule? Let us know in the comments section below.