The Supreme Court on Tuesday rejected Republicans’ last-gasp bid to reverse Pennsylvania’s certification of President-elect Joe Biden’s victory in the electoral battleground.
The court without comment refused to call into question the the certification process in Pennsylvania. Gov. Tom Wolf already has certified Biden’s victory and the state’s 20 electors are to meet on Dec. 14 to cast their votes for Biden.
In the underlying lawsuit, Kelly and the other Republican plaintiffs had sought to either throw out the 2.5 million mail-in ballots submitted under the law or to wipe out the election results and direct the state’s Republican-controlled Legislature to pick Pennsylvania´s presidential electors.
The state’s high court said the plaintiffs waited too long to file the challenge and noted the Republicans’ staggering demand that an entire election be overturned retroactively.
By rejecting the case out of hand, the justices do not have to say why they made their ruling.
Republican U.S. Rep. Mike Kelly of northwestern Pennsylvania and other plaintiffs had pleaded with the justices to intervene after the state Supreme Court turned away their case.
The Republicans argued that Pennsylvania’s expansive vote-by-mail law is unconstitutional because it required a constitutional amendment to authorize its provisions.
Biden beat President Donald Trump by more than 80,000 votes in Pennsylvania, a state Trump had won in 2016. Most mail-in ballots were submitted by Democrats.
The move came hours after the state of Texas joined the desperate effort to get a case that would overturn the election results by suing four battleground states that Joe Biden won for the way they conducted elections.
In the suit filed late Monday in the name of the State of Texas, its attorney general Ken Paxton argues that the Pennsylvania, Michigan, Wisconsin and Georgia violated the Constitution’s Elections Clause with their dramatic expansion of mail-in ballots amid the coronavirus pandemic.
Paxton is himself under FBI investigation over allegations of bribery and abuse of his office. It is unclear if he and Trump had coordinated on the move but Trump tweeted that it showed ‘courage and brilliance.’
Texas’ governor Greg Abbott tweeted ‘God Bless Texas’ while senators Ted Cruz and John Cornyn and governor Greg Abbott have not passed comment on it.
By targeting the four swing states, Paxton’s lawsuit aims to either get their Republican-majority state representatives to appoint electors to the Electoral College, flipping its majority to Trump, or invalidate their electors entirely, reducing Biden’s electoral college majority under 270 and handing the decision on the presidency to the House of Representatives.
The Supreme Court does not have to take up the case and could simply ignore it. The attorneys general of Michigan and Wisconsin – both Democrats – mocked the legal bid and accused Paxton of running a ‘circus.’
Paxton claims that the four states acted against their own constitutions to make voting easier in the pandemic, and that this hurt the voters of Texas by violating the federal constitution’s equal protection clause.
‘Whether well-intentioned or not, these unconstitutional acts had the same uniform effect—they made the 2020 election less secure in the Defendant States,’ according to the suit.
‘Those changes are inconsistent with relevant state laws and were made by non-legislative entities, without any consent by the state legislatures. The acts of these officials thus directly violated the Constitution.’
The suit came after another bad day for the president and his allies in court, with federal judges in Georgia and Michigan dismissing ally Sidney Powell’s ‘Kraken’ lawsuits, and on a crucial deadline known as ‘safe harbor,’ when all state litigation must end at at 11.59pm Tuesday.
And his lawyer Jenna Ellis became the latest to be diagnosed with COVID, while Rudy Giuliani remains in the hospital in Georgetown being treated for it. He is claimed to be making conference calls from his bed.
Texas Attorney General Ken Paxton (right, with Trump in the Beast in 2018) has filed suit against four states that went for Joe Biden, asking the Supreme Court to have Republican-run state legislatures appoint electors and hand the presidency to Donald Trump
Pennsylvania reaction: Josh Shapiro, the state’s attorney general, slammed the suit as a ‘circus’
Wisconsin reaction: Josh Kaul, the state’s attorney general, compared its chances in court to Texas’ in the Ice Bowl
President Trump claims he ‘won’ the election but has suffered a series of defeats in court
University of Texas law professor Steve Vladek called the suit ‘insane’ and the ‘craziest’ election challenge lawsuit yet
ADULTERY AND AN FBI PROBE: MEET THE AG BEHIND HAIL MARY BID TO VOID ELECTION
The FBI is investigating allegations that Texas Attorney General Ken Paxton broke the law in using his office to benefit a wealthy donor.
Federal agents are looking into claims by former members of Paxton’s staff that the Republican committed bribery, abuse of office and other crimes to help Austin real estate developer Nate Paul.
The investigation was reported in mid-November by the Associated Press.
Paxton has denied wrongdoing and refused calls for his resignation since his top deputies reported him to federal authorities at the end of September.
Trump ally: Ken Paxton with Eric Trump and his wife Angela – who he admits cheating on
It’s unclear how far the FBI is into investigating the allegations against Paxton. An agency spokeswoman in San Antonio declined to comment.
Paxton is accused of using his position as Texas’ top law enforcement official to benefit Paul in several ways.
Central to their claims is the fact that Paxton hired an outside lawyer to investigate the developer’s allegations that the FBI improperly searched his home and offices last year.
Each of Paxton’s accusers has resigned, been put on leave or been fired since reporting him. Last week, four of them filed a state whistleblower lawsuit against the attorney general, claiming he ousted them as retribution.
The full nature of Paxton and Paul’s connection remains unclear. In 2018, Paul donated $25,000 to the attorney general’s reelection campaign. The developer also said in a recent deposition that Paxton recommended a woman for her job with his company.
Two people previously told The Associated Press that Paxton acknowledged in 2018 having an extramarital affair with the woman, who was then a state Senate aide. The people spoke on condition of anonymity due to fears about retaliation.
Paxton has spent most of his tenure in office maintaining his innocence in the face of an indictment on unrelated securities fraud charges. The case has been stalled for years over legal challenges.
Trump retweeted demands that other Republican states join the suit and a list of when their state attorneys generals’ terms are up – implying that they should face primaries if they do not join in.
The suit claims that the four states should be ordered by the justices to pass the power of picking the Electoral College electors back to the legislatures, under Article 1 of the Constitution.
The Constitution’s Elections Clause in Article 1 states that the ‘Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof’ – establishing each state’s role in running its elections.
This is why some states allowed for universal mail-in voting years ago and some took a different course.
But the suit claims the four swing states ‘flooded their citizenry with tens of millions of ballot applications and ballots in derogation of statutory controls as to how they are lawfully received, evaluated, and counted.’
It calls out ‘non-legislative changes to the Defendant States’ election laws’ through state courts and election officials.
The suit asks the Supreme Court to delay the December 14 meting of the Electoral College to allow for investigations. It accused the states of ‘rampant lawlessness’ and trying to ‘usurp’ powers from their legislatures.
The suit seeks to remand the appointment of electors to the states’ legislatures – which are all Republican-run – for appointment by the legislators rather than the popular vote that occurred.
It explicitly says that if that does not happen, the Texas AG wants the election to be thrown to the House on January 6. Each state delegation gets one vote, which would put Republicans in the majority if there was a vote.
The Texas suit claims ‘rampant lawlessness’ and cites some of the same claims that have either been debunked or thrown out of court already.
For example, it cites ‘suitcases full of ballots being pulled out from underneath tables after poll watchers were told to leave’ in Georgia, although an official from the Republican Secretary of State’s office in Georgia provided an affidavit to say that there was no wrongdoing.
‘Our investigation and review of the entire security footage revealed that there were no mystery ballots that were brought in from an unknown location and hidden under tables as has been reported by some,’ investigator Frances Watson wrote.
Texas itself allows mail-in voting, but sets out categories and requires a reason: travel, being over 65, incarcerated, or with a disability.
Pennsylvania’s legislature voted in 2019 to create no-excuse mail-in voting, before the pandemic. Democratic Gov. Tom Wolf signed the legislation, which was passed on a bipartisan basis.
The Supreme Court is not obligated to even reply to the suit – it can simply decline to take it up.
So far the high court has given consideration to just one case filed by a Trump ally – an attempt by losing Republican Conor Lamb to have mail-in ballots in his Pennsylvania House race voided. In that case Justice Samuel Alito has asked for briefs from both sides to be filed by Tuesday.
University of Texas law professor Steve Vladeck called the suit ‘insane,’ quipping on Twitter: ‘It looks like we have a new leader in the ‘craziest lawsuit filed to purportedly challenge the election’ category.’
But other cases brought by or linked to Trump have failed, with Monday a particularly bad day.
In the course of the day Georgia certified its vote for Joe Biden again after two recounts, while former Trump campaign lawyer Sidney Powell’s ‘Kraken’ lawsuits got thrown out by federal judges in Georgia and Michigan in the course of a morning.
‘The People have spoken,’ wrote U.S. District Court Judge Linda V. Parker in a blistering decision in Michigan, dismissing Powell’s claims of rampant voter fraud and a far-reaching conspiracy to alter electronic voting records which included Venezuela, Cuba, China, North Korea, the Democrats, some Republicans, and workers for Dominion, the election IT specialist company.
Parker, appointed by President Barack Obama, said the case embodied the phrase ‘This ship has sailed.’
‘This lawsuit seems to be less about achieving the relief plaintiffs seek … and more about the impact of their allegations on people´s faith in the democratic process and their trust in our government.’
Separately it was revealed Trump called the Republican speaker of the Pennsylvania House of Representatives twice over the last week, in his latest effort to get the battleground state’s legislature to overturn the popular victory for Joe Biden there.
House Speaker Bryan Cutler’s office confirmed the two calls to The Washington Post, making Pennsylvania the third state Trump directly attempted to pressure into reversing the election results. He also sought to intervene in Michigan and Georgia – three of the states mentioned in the Texas lawsuit.
The plea to the Supreme Court comes despite judges having been among the harshest critics of the legal arguments put forth by Trump’s legal team, often dismissing them with scathing language of repudiation.
This has been true whether the judge has been appointed by a Democrat or a Republican, including those named by Trump himself.
The judicial rulings that have rejected Trump’s unfounded claims of widespread voter fraud have underscored not only the futility of the lame-duck president’s attempt to sabotage the people’s will but also the role of the courts in checking his unprecedented efforts to stay in power.
The rebukes have not stopped the litigation.
Even in the face of these losses in court, Trump has contended that, in fact, he won the election.
And he’s moved out of the courts to directly appeal to lawmakers as his losses mount. He brought Michigan lawmakers to the White House in a failed bid to set aside the vote tally, and phoned Georgia Gov. Brian Kemp, asking him to order a special legislative session to overturn the states results. Kemp refused.
And Trump tweeted in all caps, ‘I WON THE ELECTION, BIG.’
While that is not the case, what is true is that Trump is rapidly running out of legal runway.
Out of roughly 50 lawsuits filed, more than 35 have been dropped or dismissed.
A great deal of the lawsuits highlight a lack of understanding of how elections actually work.
A DARING LAWSUIT – OR DOOMED TO HIT THE TRASH?
Texas AG Ken Paxton lawsuit makes a legal Hail Mary by going straight to the Supreme Court – meaning he can either win big, or he could simply be ignored.
The Supreme Court is the correct place for disputes between states to be played out, but usually such disputes are long-running, such as over water rights. In 2014, Oklahoma and Nebraska asked the Supreme Court to stop Colorado’s marijuana legalization – but it declined to hear the case.
That could be well be the justices’ first response to Paxton.
To convince them to take the case, he has to convince them that the people of Texas – whom he represents – suffered harm from the election’s outcome, and that the four states either breached the Article 1 clause establishing how elections are run, or the Equal Protection clause, by making the votes of the people of Texas somehow less important than those of the swing states.
The states themselves can point out that election law is dealt with in individual states, and that cases there have universally lost. They can also point to the results in federal circuit courts and – in Pennsylvania – federal appeals courts which have dismissed claims too.
Even if the justices are convinced that they should take the case, it remains a severe uphill task for the Republican attorney general to win.
The usual approach the justices take to disputes between states is to set up their own special court, under a ‘special master’ to investigate both sides’ cases, take evidence, and approach the case like its own trial.
That is because, unusually, the Supreme Court is starting from scratch rather than dealing with a case which has already made its way through the courts system and is very well defined. This time, however the clock is ticking and the justices could opt to hear the case themselves.
Either way, Paxton would have to present voluminous evidence to back up his demand, that millions of ballots be voided and the results of four swing states’ elections be overturned.
The core of Paxton’s case is that the four states changed mail-in ballot rules before the election, then used those to fraudulently switch the result to Biden from Trump.
The Supreme Court would have to rule both that the four states acted unconstitutionally, and then that the way to deal with those actions is by voiding their elections. Such an extreme act runs in the face of the Supreme Court’s ruling earlier this year on ‘faithless electors,’ which allowed states to punish or remove those who planned to vote against the states’ winning candidate.
During the case, Justice Brett Kavanaugh spoke about ‘the chaos principle of judging’ saying if it’s a ‘a close call…we shouldn’t facilitate or create chaos.’
As for his evidence, Paxton faces an obvious challenge: his submission relies on a string of claims about both the constitutional actions of the states in allowing more widespread access to mail-in voting, and of fraud, which have already been slapped down by state and federal judges in Michigan, Pennsylvania, Wisconsin and Georgia.
Among the ‘evidence’ is that Republicans were not allowed to watch ballots being counted in Philadelphia, which was laughed out of court when a Trump lawyer admitted there was a ‘non-zero’ number of observers.
He also claims that Georgia’s mail-in ballots would have gone to Trump if they had been rejected at the same rate as they were in 2016 – which the state has already ruled out happening.
In Michigan, the evidence includes the affidavit of Jessy Jacob, already dismissed by a Detroit judge, claiming that that election workers coached voters to either vote Biden or straight Democrat by standing beside them in the voting station, and that she was asked not to seek photo ID from voters. The judge dismissed her claims as ‘generalized,’ said she did nothing about it when she claimed it was happening, and only came forward when Trump lost.
In Wisconsin Paxton claims voting drop boxes were unconstitutional. The state’s attorney general can invoke what is known as ‘laches,’ a defense that Paxton should have sued at the time the boxes were authorized, rather than waiting to see the outcome of the vote. It also includes a claim from a USPS sub-contractor about ballots being backdated after polls closed – even though the state had already reported its result.
And in all four states Paxton quotes a statistical analysis: ‘The probability of former Vice President Biden winning the popular vote in the four Defendant States—Georgia, Michigan, Pennsylvania, and Wisconsin— independently given President Trump’s early lead in those States as of 3 a.m. on November 4, 2020, is less than one in a quadrillion, or 1 in 1,000,000,000,000,000.’ But its basis is undeclared and comes from an energy economist, not an elections expert.
The suit would result in throwing out the results in four battleground states won by President-elect Joe Biden
In Georgia, U.S. District Judge Timothy Batten, appointed by President George W. Bush, dismissed a lawsuit filed by Powell, who was dropped from the Trump legal team a few weeks ago but has still continued to spread faulty election claims.
Powell’s lawsuit claimed widespread fraud meant to illegally manipulate the vote count in favor of Biden. The suit said the scheme was carried out in different ways, including ballot stuffing, votes flipped by the election system from Trump to Biden and problems with absentee ballots. The judge summarily rejected those claims.
Batten said the lawsuit sought ‘perhaps the most extraordinary relief ever sought in any federal court in connection with an election.’
He said the lawsuit sought to ignore the will of voters in Georgia, which certified the state for Biden again Monday after three vote counts.
‘They want this court to substitute its judgment for that of two-and-a-half million Georgia voters who voted for Joe Biden and this I am unwilling to do,’ Batten said.
Much like Trump, his lawyers try to blame the political leanings of the judge after their legal arguments are flayed.
When a federal appeals panel in Philadelphia rejected Trump´s election challenge just five days after it reached the court, Trump legal advisor Jenna Ellis – who was revealed Tuesday to have COVID – called their work a product of ‘the activist judicial machinery in Pennsylvania.’
But Trump appointed the judge who wrote the Nov. 27 opinion.
‘Voters, not lawyers, choose the president. Ballots, not briefs, decide elections,’ Judge Stephanos Bibas wrote as the 3rd U.S. Circuit panel refused to stop the state from certifying its results for Democrat Joe Biden, a demand he called ‘breathtaking.’
All three of the panel members were appointed by Republican presidents.
And they were upholding the decision of a fourth Republican, U.S. District Judge Matthew Brann, a conservative jurist and Federalist Society member. Brann had called the campaign’s legal case, which was argued in court by Rudy Giuliani, a ‘haphazard’ jumble that resembled ‘Frankenstein´s monster.’
In state courts, too, the lawsuits have failed. In Arizona on Friday, Judge Randall Warner, an independent appointed in 2007 by Democratic former Gov. Janet Napolitano, threw out a bid to undo Biden’s victory.
Arizona Republican Party Chairwoman Kelli Ward challenged of ballots in metro Phoenix that were duplicated because voters´ earlier ballots were damaged or could not be run through tabulators.
Warner wrote: ‘There is no evidence that the inaccuracies were intentional or part of a fraudulent scheme. They were mistakes. And given both the small number of duplicate ballots and the low error rate, the evidence does not show any impact on the outcome.’
In Nevada on Friday, Judge James Todd Russell in Carson City ruled that attorneys for Republican electors failed to provide clear or convincing evidence of fraud or illegality.
Nevada judges are nonpartisan. But Russell’s father was a Republican governor of the state from 1951-59.