'Factually Wrong': Understanding Texas' Unprecedented Request for Supreme Court to Toss Out Election Results
President Donald Trump and 18 Republican state attorneys general are asking the Supreme Court to invalidate tens of millions of votes in Georgia, Michigan, Pennsylvania and Wisconsin in the latest — and, according to observers, arguably the most brazen and most undemocratic — effort to overturn the 2020 election results.
Experts have widely dismissed the lawsuit's merits, while one election law professor tells PEOPLE he expects the high court to “quickly” reject the case before the Electoral College votes on Monday and officially designates Joe Biden the next president.
“There is no precedent for a case like this,” says Richard Hasen, a law professor at the University of California, Irvine.
A spokeswoman for the attorney general in Georgia, one of the defendant states (whose elections are overseen by Republicans) was more blunt: “With all due respect, the Texas attorney general is constitutionally, legally and factually wrong about Georgia.”
Nonetheless the lawsuit, which was first filed in the Supreme Court on Tuesday by Texas Attorney General Ken Paxton, has attracted significant attention while it is pending before the court.
On Wednesday President Trump — hailing it as "the big one" despite failing to persuade any other court that the election was rigged — as well as 17 other Republican attorneys general filed requests to intervene in or to support of the case.
In essence, Paxton’s lawsuit alleges Texas voters were harmed by the elections in Georgia, Michigan, Pennsylvania and Wisconsin because officials in those states illegally changed their own rules for voting amid the novel coronavirus pandemic.
This is vigorously disputed by the four defendant states. Twenty-two other states and territories submitted briefs supporting them.
"Contrary to Texas’s argument, Georgia has exercised its powers under the Electors Clause. Georgia’s legislature enacted laws governing elections and election disputes, and the State and its officers have implemented and followed those laws," Georgia said in its response, adding, "Texas nevertheless asks this Court to transfer Georgia’s electoral powers to the federal judiciary. Respect for federalism and the constitutional design prohibits that transfer of power."
Pennsylvania, in its response, urged that "the Court should not abide this seditious abuse of the judicial process, and should send a clear and unmistakable signal that such abuse must never be replicated.”
Paxton brought the Texas complaint directly to the Supreme Court because it has the option to hear conflicts between states.
The suit asks the court to toss out the results in the four defendant states, all of which voted for Biden, and instead give each state's pro-Trump legislature the authority to pick electors rather than the voters.
However, says Hasen, the law professor: “There’s no authority for one state to sue another state to change how that state conducts their elections. This is a publicity stunt.”
Hasen says the lawsuit “consists of rehashed and rejected or new and unsupported claims of fraud.”
"This lawsuit is bogus and based on conspiracy theories, all meant to earn the approval of an audience of one—the sitting president," Pennsylvania Attorney General Josh Shapiro, a Democrat, tweeted.
Some Republicans also spoke out against the complaint, with Nebraska Sen. Ben Sasse comparing it to "a PR stunt rather than a lawsuit — as all of the assertions have already been rejected by federal courts and Texas' own solicitor general isn't signing on."
Texas Sen. John Cornyn, a leading Republican, told CNN that “I frankly struggle to understand the legal theory of it."
“No. 1, why would a state, even such a great state as Texas, have a say-so on how other states administer their elections?” Cornyn said. “We have a diffused and dispersed system and even though we might not like it, they may think it's unfair, those are decided at the state and local level and not at the national level."
But the suit also drew a notable amount of support from conservatives in Congress: On Thursday, 106 GOP members of the House of Representatives filed an amicus brief agreeing the election should be tossed in those four states.
The 16 states that joined Texas and the president were Alabama, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah and West Virginia.
Trump, 74, has refused to concede the election results which show President-elect Biden defeated him by a 302-232 margin in the Electoral College vote.
Biden received the most votes of any candidate in American history, defeating Trump in the popular vote with about 81.3 million votes to the incumbent’s 74.2 million.
All 50 states certified their election results this week, ahead of next week's Electoral College vote.