State of Texas v. Commonwealth of Pennsylvania, States of Georgia, Michigan and Wisconsin

On December 7, Texas Attorney General Ken Paxton filed a motion with the U.S. Supreme Court to challenge the administration of the 2020 election in Pennsylvania, Georgia, Michigan, and, Wisconsin (Defendant States).  The Supreme Court, though generally an appellate court, has original jurisdiction over cases between two or more states.  The Court is not required to take these cases, but when they determine that a matter is of sufficient importance to the country, it grants the motion and serves as a trial court.

Assuming the Court takes this case, Texas will claim that three types of improper election conduct were unconstitutional:

• Non-legislative actors amending state election law in violation of the Electors Clause of the U.S. Constitution,
• Interstate differences in the treatment of voters with evidence of a preference for voters who lived in Democratic-controlled areas of these states, and
• The appearance of unconstitutional voting irregularities that relaxed ballot-integrity protections

In the brief supporting the motion, Texas alleges that some officials in the Defendant States used the Covid-19 pandemic as a justification to ignore state law around absentee and mail-in voting.  As a result, there were tens of millions of absentee applications and ballots that were received, evaluated, and counted outside of the statutory laws governing this process.

“Whether well-intentioned or not, these unconstitutional and unlawful changes had the same uniform effect—they made the 2020 election less secure in Defendant States. Those changes were made in violation of relevant state laws and were made by non-legislative entities, without any consent by the state legislatures.”

The requested relief is mainly a declaration that the electoral college votes cast in these four states violate the Electors Clause and the 14th Amendment and, as such, cannot be counted. If successful, the 62 electoral votes from these four states would not be counted for Joe Biden, taking his unofficial electoral college lead 306 to 244.

By mid-afternoon on December 9, Arkansas, Alabama, Missouri, and Louisiana said they supported the motion Texas put forward.  Alabama AG Steve Marshall echoed the support, writing “unconstitutional actions and fraudulent votes in other states not only affect the citizens of those states, they affect the citizens of all states.”

The Defendant States submitted their briefs by the December 10 deadline.  By the Friday afternoon, December 11, the majority of the rest of the country attempted to get involved, filing briefs both in favor of and against Texas’ motion to have the Supreme Court hear this case.  Texas AG Paxton filed a reply to the Defendant States’ responses, noting that they did not “seriously address the grave issues that Texas raise[d]” and clarifying three threshold issues:

1. Texas has not asked for this relief from any other court, nor could another court provide adequate relief,
2. Texas is not asking the Court to re-elect President Trump or disenfranchise millions of voters.  Texas is asking, quite clearly, for the Court to recognize the “obvious fact that Defendant States’ maladministration of the 2020 election makes it impossible to know which candidate garnered the majority of lawful votes.”  Inaction by the Court would disenfranchise voters and allow the current masses of election litigation to continue, and
3. The argument that Texas should have filed this motion sooner is absurd given that the “campaign to eviscerate state statutory ballot integrity provisions took months to plan and carry out yet Texas has had only weeks to detect wrongdoing, look for witnesses 3 willing to speak, and marshal admissible evidence. Advantage to those who, for whatever reason, sought to destroy ballot integrity protections in the selection of our President.“

Contrary to what Defendant States allege, Texas is likely to succeed on the merits because it has standing to sue, Defendant States acted illegally and unconstitutionally in modifying state election law through non-legislative process decisions, and local election officials amended state law by their systemic failure to follow it.

Also on December 11, Louisiana Congressman Mike Johnson and 125 other members of the U.S. House of Representatives filed an amicus brief presenting their concerns, as well as those of millions of other Americans, about the 2020 election’s unconstitutional irregularities and resulting doubt that cast upon both the integrity of the election and the unofficial outcome.  The brief defends the role of state legislatures and their sole constitutional authority to establish the manner in which presidential electors are selected.  Each of the Defendant States usurped the legislative power of their respective states as follows:

Pennsylvania

• Secretary of State Boockvar issued unconstitutional guidance in settling a lawsuit by not requiring counties to set aside returned absentee and mail-in ballots based solely on signature analysis,
• The Pennsylvania Supreme Court unilaterally extended the 8 p.m. election day receive-by deadline for mail-in ballots by three days, without legislative authorization, and
• Numerous other violations including the presumption that ballots without a postmark were mailed by election day, denying poll watcher access for opening, counting, and recording absentee and mail-in ballots, unequal curing of ballots, and premature removal of ballots from secure containers.

Georgia

• Secretary of State Raffensperger issued procedures, in direct conflict with Georgia legislation, for reviewing signatures on absentee ballot envelopes and thereby making it more difficult to challenge defective signatures, and
• The State Election Board allowed processing of absentee ballots up to three weeks before Election Day, in clear violation of the statutory prohibition against processing them before polls opened.

Michigan

• Secretary of State Benson usurped state legislative power by refusing to follow the statutory secure absentee ballot application process by allowing people to request ballots online and without a signature.
• Secretary Benson also ignored Michigan law requiring absentee ballot applications to be distributed at the local level and instead sent out 7.7 million applications at the state level, and
• In Wayne County (Detroit), election officials refused to follow the statutory inspection requirement for verifying that absentee ballots were cast by actual voters.

Wisconsin

• The Wisconsin Elections Commission (WEC) created hundreds of unmanned drop boxes and encouraged voters to use them instead of complying with clear state law mandating the only legal options to return absentee ballots are by mail or in-person delivery to staffed office locations, and
• The WEC further ignored the state law to count and certify these illegal votes.

In a two-paragraph statement issued by the Supreme Court on Friday evening, December 11, the Court denied Texas’ motion to file its complaint due to lack of standing.  “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.“  Justice Alito, joined by Justice Thomas, dissented. “In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction.“  Justice Alito would have granted the motion to hear the complaint, but not the relief requested.

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