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Texas tries Hail Mary to block election outcome (updated)

In a last-ditch effort to forestall the outcome of the 2020 presidential election, Texas sought late Monday to file a lawsuit directly in the Supreme Court, attempting to delay the Electoral College vote and prevent four states – Georgia, Michigan, Pennsylvania and Wisconsin – from casting their Electoral College votes for President-elect Joe Biden, who won the popular vote in each state. This highly unusual use of the court’s original jurisdiction — which is most often used to resolve interstate disputes involving, for example, water rights — came just six days before each state’s electors are required by law to meet and cast their ballots in the Electoral College.

The filing by Texas Attorney General Ken Paxton accuses government officials in the four states of using the COVID-19 pandemic to make changes to their states’ election laws through “executive fiat or friendly lawsuits, thereby weakening ballot integrity.” The state officials, Paxton writes, “flooded” their states with absentee ballots and “weakened the strongest security measures protecting the integrity of the vote-signature verification and witness requirements.” As a result, Paxton contends, the 2020 election “suffered from significant and unconstitutional irregularities in those four states” – for example, treating voters in Democratic areas more favorably than in other areas. When taken together, Paxton asserts, these flaws make it impossible to know who “legitimately won the 2020 election and threaten to cloud all future elections.”

There is normally no specific timetable for the court to act in such cases, but Paxton explains that the state will seek expedited consideration of its request. He also urges the justices to resolve the dispute without additional briefing, telling them that the issues presented in the case – involving the outcome of the 2020 presidential election – “are neither fact-bound nor complex.”

Texas is normally represented in the U.S. Supreme Court by its solicitor general, Kyle Hawkins, who argued before the court last month in the challenge to the Affordable Care Act’s individual mandate. However, Hawkins’ name does not appear on the filing.

Officials in the states being challenged described Texas’ filing as an outlandish stunt with no legal basis. “These continued attacks on our fair and free election system are beyond meritless, beyond reckless,” Pennsylvania Attorney General Josh Shapiro (D) wrote on Twitter.

“I feel sorry for Texans that their tax dollars are being wasted on such a genuinely embarrassing lawsuit,” Wisconsin Attorney General Josh Kaul (D) wrote. “Texas is as likely to challenge the outcome of the Ice Bowl as it is to overturn the will of Wisconsin voters in the 2020 presidential election.”

Georgia Attorney General Chris Carr (R), who was recently named the new chair of the Republican Attorneys General Association, also brushed off the lawsuit. “With all due respect, the Texas Attorney General is constitutionally, legally and factually wrong about Georgia,” a spokesperson for Carr said, according to The Dallas Morning News.

The justices also heard on Tuesday from Pennsylvania in another long-shot lawsuit seeking to overturn that state’s election results. The state filed its response to a request by Rep. Mike Kelly (R-Pa.) to block the state from certifying the results of the Nov. 3 election. Kelly challenged the state’s expansion of mail-in voting as unconstitutional, but the Pennsylvania Supreme Court ruled that Kelly had waited too long to go to court.

In its filing on Tuesday, Pennsylvania urged the justices to stay out of the dispute, telling them that Kelly was seeking “one of the most dramatic, disruptive invocations of judicial power in the history of the Republic.” Kelly’s claims are “fundamentally frivolous,” Pennsylvania asserted, were not raised or decided below and would ask the court to “constitutionalize huge swaths of state procedural law without any credible basis” to do so.

Update (Tuesday, Dec. 8, 6:20 p.m.): On Tuesday evening, the court called for a response to Texas’ filing by Thursday, Dec. 10, at 3 p.m.

Correction: An earlier version of this article, relying on a press release issued by Texas, misstated the date on which Texas submitted its filing to the Supreme Court. The filing was submitted on Monday, Dec. 7, not Tuesday, Dec. 8.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Texas tries Hail Mary to block election outcome (updated), SCOTUSblog (Dec. 8, 2020, 1:20 PM),