December 9, 2020

Texas to the Rescue?

The Lone Star State’s attorney general has filed a different kind of election suit with the Supreme Court.

If President Donald Trump isn’t jetting off to Mar-a-Lago on January 20, he may well have Ken Paxton to thank for it. Paxton, the attorney general of Texas, filed a pleading with the U.S. Supreme Court on Monday in a way that’s attracted the attention of some pretty astute legal minds.

Essentially, Texas is arguing that the electoral processes in Georgia, Michigan, Pennsylvania, and Wisconsin were unconstitutional, and that the results in those states should be negated. And because this is a lawsuit between states, the Supreme Court has original and exclusive jurisdiction.

Power Line’s John Hinderaker calls it a “Hail Mary,” but anyone who follows football knows that a successful Hail Mary isn’t nearly as far-fetched as, say, an incoherent and utterly uninspiring presidential candidate getting millions more population-adjusted votes than the most appealing and charismatic candidate in modern history.

As Hinderaker writes, “The Texas motion and supporting brief are well-drafted and make a plausible case — importantly, one that, if accepted, does not require extensive fact-finding into alleged voter fraud. Reduced to its essentials, the motion alleges 1) that under the Constitution’s Electors Clause, state legislatures have plenary authority over appointment of each state’s electors; 2) that in each of the defendant states, non-legislative actors (e.g., the Secretary of State) unconstitutionally changed the rules governing this year’s election without legislative approval or ratification; 3) that these changes favored some voters over others, in violation of the [Constitution’s] Equal Protection Clause; and 4) in each state, the number of ballots that were counted pursuant to unconstitutional changes in election procedures exceeds the margin of Joe Biden’s alleged victory.”

What, specifically, is Texas asking the Supremes to do? Essentially, to declare the four states to be in violation of the Electors Clause and the Equal Protection Clause of the Constitution’s Fourteenth Amendment; to declare that any Electoral College votes cast by the four states therefore can’t be counted; to direct the states’ respective legislatures to appoint presidential electors to the EC by a special election; and to direct the states not to move forward with certification of their electors without the Supreme Court’s consent.

As AG Paxton put it, “Trust in the integrity of our election processes is sacrosanct and binds our citizenry and the States in this Union together. Georgia, Michigan, Pennsylvania and Wisconsin destroyed that trust and compromised the security and integrity of the 2020 election. … By ignoring both state and federal law, these states have not only tainted the integrity of their own citizens’ vote, but of Texas and every other state that held lawful elections. Their failure to abide by the rule of law casts a dark shadow of doubt over the outcome of the entire election. We now ask that the Supreme Court step in to correct this egregious error.”

Hinderaker says the suit is plausible from a legal standpoint and avoids the hopelessness of having to adjudicate the hundreds of allegations of fraud and irregularity within a workable time frame. He’s bearish on a successful outcome, but where other legal challenges have so far failed, he calls this lawsuit “the most credible and practical challenge to Joe Biden’s tainted victory that I have seen.”

Will the High Court take Texas up? Who knows? But if not now, when? And what are we paying these nine black-robed folks for, anyway, if not to protect our Constitution and the integrity of our elections?

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