“We will be INTERVENING in the Texas…case,” outgoing President Donald Trump tweeted today. “This is the big one.”
Trump was referring to Texas v. Pennsylvania, a lawsuit filed directly at the U.S. Supreme Court this week by Texas Attorney General Ken Paxton, who wants SCOTUS to overturn the election results in four states—Pennsylvania, Georgia, Michigan, Wisconsin—that went for President-elect Joe Biden. Texas “is acting to protect the interests of its respective citizens in the fair and constitutional conduct of elections used to appoint presidential electors,” the lawsuit declared.
As far as legal filings go, this one is not exactly a model of careful argumentation. For example, Texas told the Supreme Court that it is specifically targeting Pennsylvania, Georgia, Michigan, and Wisconsin because “Defendant States’ combined 72 electoral votes…will determine the outcome of the election.” But as the veteran Supreme Court reporter Lyle Denniston quickly pointed out, “those 4 only have 62.” Indeed, Pennsylvania has 20 electoral votes, Georgia has 16, Michigan has 16, and Wisconsin has 10. You do the math. “Did Texas proofread the massive documents it filed in SCt to block Biden victory?” Denniston asked. It would appear not.
Under Article III, Section 2 of the Constitution, the Supreme Court has “original Jurisdiction” in certain matters, including “Controversies between two or more States.” In plain English, this means that a state may try to sue another state directly at SCOTUS without first hitting up the lower courts. But original jurisdiction cases are rare and, when they involve one state suing another, they typically center on disputes over things like borders or water rights. No state has ever pulled off a stunt even remotely like overturning the results of a presidential election by going straight to SCOTUS to challenge the results in another state.
“With all due respect,” said a spokeswoman for Georgia’s Republican Attorney General Chris Carr, “the Texas attorney general is constitutionally, legally and factually wrong about Georgia.”
That pattern of wrongness has certainly been evident in the other big election cases that Trump and his allies have been touting in recent weeks.
Take Trump for President v. Pennsylvania, a case that sought to have that state’s election results overturned. “The Campaign’s claims have no merit,” ruled Judge Stephanos Bibas of the U.S. Court of Appeals for the 3rd Circuit. “Calling an election unfair does not make it so,” Bibas wrote. “Charges require specific allegations and then proof. We have neither here.” For those of you keeping score at home, Bibas is a respected legal conservative who was appointed to the 3rd Circuit in 2017 by none other than Trump himself. Bibas’ “blistering opinion,” as Reason‘s Jacob Sullum put it, “is a reality check for Republicans who still think Biden stole the election.”
Meanwhile, in the span of just a few hours yesterday, Trump and his allies suffered two more embarrassing defeats. First, in a one-sentence order with no dissents, the U.S. Supreme Court declined to intervene in another Pennsylvania case, this one brought by Rep. Mike Kelly (R–Pa.), who went to court in hopes of getting millions of mail-in ballots thrown out, thereby overturning Biden’s Keystone State victory.
That loss for Trump was quickly followed by Ward v. Jackson, a unanimous ruling by the Arizona Supreme Court which rejected a state Republican Party challenge to Arizona’s election results. “The challenge fails to present any evidence of ‘misconduct,’ ‘illegal votes’ or that the Biden Electors ‘did not in fact receive the highest number of votes for office,’ let alone establish any degree of fraud or a sufficient error rate that would undermine the certainty of the election results,” the Arizona Supreme Court observed.
There is something almost pathetic in the sight of a sitting president clinging to such outlandish lawsuits only to watch them predictably sputter and fail in the courts. That the losses are sometimes accompanied by a bench slap from one of Trump’s own judicial appointees does not improve the optics.
If the Supreme Court ultimately rejects the far-fetched lawsuit that was filed this week by Texas, as I suspect it will, Trump’s judicial humiliation will be complete.
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