Let’s call Texas’s lawsuit against Georgia, Michigan, Pennsylvania, and Wisconsin what it is: a public relations stunt with very little hope of legal success.
Texas Attorney General Ken Paxton announced last week that his office would file suit against the four battleground states, alleging that executive and election officials in each state illegally tweaked voting rules, thereby guaranteeing a win for President-elect Joe Biden. Seventeen other states have joined the suit, as has President Trump, in an effort to bring the matter before the Supreme Court. But it’s unlikely the high court will even take up the case, let alone rule in Texas’s favor.
That’s because this lawsuit is “so frivolous and so blatantly political,” as National Review’s Andrew McCarthy put it, that even Texas Solicitor General Kyle Hawkins declined to endorse it. In other words, the top legal official who would normally argue this case before the Supreme Court does not even want his name attached to it.
A closer look at the lawsuit explains why. Paxton argued that by changing their election laws so close to the presidential election, the four battleground states compromised the integrity of the presidential election as a whole. The only problem with this argument is that Texas’s own Republican governor did exactly the same thing, extending the early voting period for the 2020 election via an executive order.
There are certainly reasonable arguments to be made against the way several states conducted their elections and against mail-in voting in general. But Texas’s election process was not directly affected by what happened in Wisconsin, Pennsylvania, Michigan, or Georgia, and to claim otherwise is not only nonsensical but legally dubious. To put it simply, if Texas is granted legal standing to sue, it would open a host of other lawsuits brought by various states against each other whenever they dislike something a neighboring government has done, regardless of whether that something directly affects them.
As McCarthy notes, this is why the courts are not the right place to settle this dispute. Texas raises some important points about election fraud that should be dealt with seriously. But these points must be addressed through the political process at both the state and federal levels. And they must be raised in a way that respects the states’ constitutional right to conduct their own election processes however they see fit.
(McCarthy goes into greater detail debunking each of the Texas lawsuit’s principal claims. I encourage you to read his explanation here).
My guess is Paxton and the other state attorneys general who joined him know that their case will do very little. The Supreme Court has already signaled it is not interested in taking up cases related to the presidential election, and in just a few days the Electoral College will make Biden’s win official. Which raises the question: Why did Texas wait so long to bring this suit? If it had legitimate concerns about the way the presidential election was conducted, why did it wait until the very last minute to make its case?
The answer should be obvious: Paxton waited because this lawsuit is not a legitimate legal quest. It is a political statement that signals support for Trump, whether he is president or not. The Republican officials joining this suit see Trump as the future of the party, even after he has left the White House. And by tying their ships to him now, they hope the reward will be continued political success.
They’re probably right, but it’s still a gamble — one that could have serious consequences for the GOP and our entire constitutional order.
