By Erik Larson and Greg Stohr
With a key deadline set to pass in his desperate bid to reverse the election, President Donald Trump and his supporters rallied around a lawsuit Texas filed in the U.S. Supreme Court that urges the justices to overturn the vote in four states that went for Joe Biden.
Trump tweeted praise for the “COURAGE & BRILLIANCE!” of Texas, hours after state Attorney General Ken Paxton said on Tuesday that he was suing Georgia, Michigan, Pennsylvania and Wisconsin and asking that they be blocked from participating in the Electoral College. In a hearing in an election challenge in Arizona later on Tuesday, a lawyer working with former Trump campaign lawyer Sidney Powell urged the judge to rule quickly so the case could be joined to Paxton’s before the Supreme Court.
Legal experts say the Texas case, which repeats allegations about mail-in voting that have already been roundly rejected in dozens of courts across the nation, has no chance of being heard by the Supreme Court. Paxton’s suit was also filed on the same day as the Dec. 8 “safe harbor” deadline for states to certify their slates of electors to send to the Electoral College, meaning time’s almost certainly up on Trump’s gambit of pressing state legislatures to override voters and appoint alternative electors who will back him instead of Biden.
“The motion filed by the Texas attorney general is a publicity stunt, not a serious legal pleading,” Michigan Attorney General Dana Nessel said in a statement. “The erosion of confidence in our democratic system isn’t attributable to the good people of Michigan, Wisconsin, Georgia or Pennsylvania but rather to partisan officials, like Mr. Paxton, who place loyalty to a person over loyalty to their country.”
But Trump supporters on Twitter hailed the state’s lawsuit as “the one.” Former Kansas Secretary of State and anti-immigration activist Kris Kobach wrote in Breitbart that Paxton’s suit was “far more important than all of the others surrounding the presidential election.” White House Press Secretary Kayleigh McEnany hailed the case as “HUGE.”
Georgia Senators Kelly Loeffler and David Perdue, who face a Jan. 5 runoff election, came out in support of the Texas lawsuit late Tuesday.
“No one should ever have to question the integrity of our elections system and the credibility of its outcomes,” they said in the statement. “This isn’t hard and it isn’t partisan. It’s American.”
The Supreme Court on Tuesday evening gave Georgia, Michigan, Wisconsin and Pennsylvania until Dec. 10 at 3 p.m. to file responses to the Texas effort.
Trump hasn’t been shy about his belief that the Supreme Court and its newly minted 6-3 conservative majority should grant him a second term. But the court generally does not hear disputes that aren’t pivotal, and Biden leads in enough states that even a Trump win in one wouldn’t alter the election’s outcome. Because it targets four states, the Texas case arguably stands the best chance of any of the remaining legal challenges of being heard by the justices.
But Paxton is still likely to have an uphill climb to get serious consideration from the court on claims that have been soundly rejected by judges across the country. He will need five justices to agree even to let him file the suit.
“It’s worse than nonsensical,” said Harvard University law professor Laurence Tribe, a frequent Trump critic. “It’s outrageous, outlandish, and outside any imaginable constitutional box.”
Paxton claims the U.S. Constitution only grants state legislatures the authority to make changes to election laws, and officials like secretaries of state who expanded mail-in voting in response to the coronavirus pandemic largely did so illegally. The Texas suit also says those states violated the equal protection clause by allowing Democratic-leaning counties to restrict Republican poll-watchers or accept ballots with minor errors.
Federal courts have not found any constitutional violation in the conduct of the election. And a number of judges have pointed out that, even if there were, the remedy sought by Trump and his allies is clearly unconstitutional. “Because this court has no authority to take away the right to vote of even a single person, let alone millions of citizens, it cannot grant plaintiff’s requested relief,” U.S. District Judge Matthew Brann wrote last month in his dismissal of the Trump campaign’s challenge to Pennsylvania’s vote certification.
The Texas suit has “no chance of success,” said Wendy Weiser, who heads a democracy program at New York University’s Brennan Center for Justice and isn’t involved in the case. The case “is more abuse of the court system to propagate disinformation and advance a political agenda.”
Noting that the Electoral College meets on Dec. 14, Paxton requested an expedited briefing schedule requiring the defendant states to file briefs on Wednesday and oral arguments to be heard on Friday. If the court fails to act before the electors vote, “a grave cloud will hang over not only the presidency but also the republic,” he said.
Wisconsin Attorney General Josh Kaul called the suit “embarrassing,” while Pennsylvania Attorney General Josh Shapiro called the claims “uniquely unserious.”
Paxton “is constitutionally, legally and factually wrong about Georgia,” Katie Byrd, spokeswoman for the state’s attorney general, Chris Carr, said in a statement.
Democratic state officials involved in other lawsuits with the president’s campaign have accused him of trying to undermine faith in U.S. elections to hobble the president-elect as he takes office. Some cases, notably those filed by Powell, have ventured into conspiracy-theory territory, with outlandish allegations that foreign agents from Iran and China conspired with Democratic officials and poll workers to infiltrate voting machines and switch votes from Trump to Biden.
Notably, Texas isn’t suing other states that made similar changes — instead targeting a handful of hotly contested states that Trump carried in 2016 but Biden won in this election. A record number of voters used mail-in ballots for the election.
Paxton is facing state securities fraud charges relating to his actions before taking office. The Associated Press also reported last month that he was under FBI investigation for allegedly intervening in legal matters on behalf of a major campaign contributor. Paxton has denied wrongdoing.