Why
the Texas lawsuit to overturn the 2020 election may be the most outlandish
effort yet
By
Dec. 10, 2020 at 3:16 p.m. CST
This is a lawsuit
that seems both like President Trump’s last major attempt to get the courts to
overturn his loss — and like it’s destined to flop. That’s the consensus of
numerous legal experts on a recently filed lawsuit by Texas Attorney General
Ken Paxton (R) alleging rampant fraud in four states that numerous other court
cases have so far failed to prove.
Paxton alleges “the
2020 election suffered from significant and unconstitutional irregularities” in
four states that swung from President Trump in 2016 to President-elect Joe
Biden in 2020: Pennsylvania, Wisconsin, Michigan and Georgia.
And he asks the
Supreme Court to allow state legislatures to pick electors in those states
instead. That part of the equation is now familiar, given Trump is also trying
to pressure state lawmakers to overturn election results.
The Washington Post reports that Trump has become
enamored with the suit. He, through a personal lawyer rather than the
administration, has joined in. He talks to his advisers about it; he’s tweeted
about it. Republican attorneys general from 17 other states have already joined
in.
Not all Republicans,
however, are on board. Sen Ben Sasse (R-Neb.), an occasional Trump critic,
singled out Paxton’s own legal troubles back home and said this, in part, in a
statement about the lawsuit: “It looks like a fella begging for a pardon filed
a PR stunt.” (Paxton is facing indictment on securities fraud charges and says he has not discussed a pardon with the White House).
But more than 100
House Republicans signed on to a brief supporting the effort.
All these Republicans
are setting themselves up for a quick failure, legal experts who have spoken to
The Fix and other Post reporters say.
It’s a legitimate
question what right Texas even has to bring such a lawsuit against other
states. (Lawsuits between states are rare.) The Supreme Court could dismiss it
out of hand for that reason, if it offers a reason at all.
And then you get into
the substance of it, which is more like a Newsmax reel than actual legal arguments,
said Jessica Levinson, a law professor at Loyola Law School and host of the
legal podcast “Passing Judgment.”
“It’s all of the Hail
Mary pass lawsuits strung together, in the erroneous hope that somehow lining
them all up will make them look more impressive,” she said. “It’s procedurally
defective. It’s substantially defective. And I think the Supreme Court will
have not only no appetite for it, but it will actively nauseate them.”
Given the court this
week already quickly threw out another lawsuit to overturn
results in Pennsylvania, it’s more likely than not that the court will do the
same here, even with three Trump appointees on the court.
Here are the most
spectacular allegations in the lawsuit, which could be Trump’s last chance to
try to use the courts to turn his loss into a win.
The allegation: These
states expanded absentee ballot use in a pandemic
Paxton argues that it
was unconstitutional for state election officials, like secretaries of state,
to expand mail voting, because the legislatures get to decide how to run
elections.
Despite there being
no evidence that mail-voting leads to statistically significant fraud, he says
that these states changed or modified their rules to allow more voting by mail
due to the pandemic opened the door to fraud. And he uses hyperbole to make his
point:
“Absentee and mail-in
voting are the primary opportunities for unlawful ballots to be cast,” he says,
alleging that “created a massive opportunity for fraud.” (It’s true that in
voting by mail, the ballot is filled out in private, which opens up more
potential avenues for fraud. There’s just no evidence it actually happens. But
well before 2020, five states conducted their elections by mail for years, with
no evidence there was large-scale fraud.)
Paxton ignores that
Wisconsin and Michigan already had programs set up to vote by mail before the
pandemic. Wisconsin has allowed people to vote absentee without an excuse since
2000.
The allegation: These
states enforced their rules about where poll workers could watch counting
Paxton strings
together half a dozen examples he says demonstrate “rampant lawlessness” in the
vote-counting process: poll workers not allowed to watch ballot counting
(because election officials had said they were violating covid-19
restrictions); “suitcases full of ballots being pulled out from underneath
tables after poll watchers were told to leave”; and he dips his toe into the
conspiracy theory that Dominion voting machines might not have worked as they
were supposed to.
Much of that evidence
has been reviewed and thrown out by various courts. And even if some poll
workers were asked to leave, does that mean tens of thousands of votes for
Trump were counted for Biden? In Pennsylvania, Trump’s lawyers were forced to
admit they did have poll workers in the room watching counted ballots, even as
they tried to file a lawsuit arguing the opposite.
The allegation: That
states counted votes as they came in
Paxton pulls an
accusation straight out of Trump’s Twitter feed — not even something Trump’s
lawyers dared make in a courtroom — that it was odd that Biden took late-night
leads in states after Trump initially was leading.
We’ve explained this.
Trump’s voters, following his own lead, largely voted in person. In-person
votes are quicker for officials to count than mailed ballots. Biden’s voters
largely voted by mail. Those take more time to tally. So as election officials
worked throughout the night, they started adding the mailed votes to the vote
count in their states. Paxton is literally arguing that the Supreme Court
overturn an election because states counted their votes. (In a separate part of
the lawsuit, he even acknowledges the partisan difference in how people voted:
“Democrat voters voted by mail at two to three times the rate of Republicans.”)
The allegation: That
Biden did better in 2020 than Hillary Clinton did in 2016 in these states
Paxton alleges that
“the statistical improbability of Mr. Biden winning the popular vote in these
four states collectively is 1 in 1,000,000,000,000,000.” It’s unclear, even in
the lawsuit, where and how he got that number, says The Post’s Philip Bump.
And we’ve been over
the “How could Biden have done better than Clinton?” claim,
too.
It’s a derivative of
the argument that Biden didn’t perform well compared to Hillary Clinton in
cities except for four big ones in states he happened to win — Atlanta,
Detroit, Milwaukee and Philadelphia.
The
Fix’s Aaron Blake calls this allegation “the epitome of bad faith, poor
research and our inability to rid our political discourse of a patent
falsehood.”
Biden did get more
votes than Clinton in many metro areas. And he actually did worse than Clinton
in Philadelphia.
Biden won these four
swing states not by massive fraud, but by learning the lessons from Clinton’s
2016 campaign and not being overconfident about polling showing him doing well
in these states. He campaigned successfully to take away Trump’s support
particularly in suburban areas.
Bottom line: Biden
got more votes where he needed to win the electoral college, just like Trump
did in 2016.
