WASHINGTON >> In blistering language denouncing Republican efforts to subvert the election, the attorneys general for Pennsylvania, Michigan, Wisconsin and Georgia asked the Supreme Court on Thursday to reject a lawsuit that seeks to overturn the victories in those states by President-elect Joe Biden, calling the audacious effort an affront to democracy and the rule of law.
The lawsuit, filed by the Republican attorney general of Texas and backed by his GOP colleagues in 17 other states and 106 Republican members of Congress, represents the most coordinated, politicized attempt to overturn the will of the voters in recent American history. President Donald Trump has asked to intervene in the lawsuit as well in hopes that the Supreme Court will hand him a second term he decisively lost.
The suit is the latest in a spectacularly unsuccessful legal effort by Trump and his allies to overturn the results, one so lacking in evidence that judges at all levels have mocked or condemned the cases as without merit. Legal experts have derided this latest suit as well, which makes the audacious claim, at odds with ordinary principles of federalism, that the Supreme Court should investigate and override the election systems of four states at the behest of a fifth.
The responses by the four states — represented by three Democratic attorneys general and, in Georgia, a Republican one — comprehensively critiqued Texas’ unusual request to have the Supreme Court act as a kind of trial court in examining supposed election irregularities with the goal of throwing out millions of votes.
“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,” a brief for Pennsylvania said.
“Let us be clear,” the brief continued. “Texas invites this court to overthrow the votes of the American people and choose the next president of the United States. That Faustian invitation must be firmly rejected.”
The briefs said Texas was in no position to tell other states how to run their elections, adding that its filing was littered with falsehoods.
“Texas proposes an extraordinary intrusion into Wisconsin’s and the other defendant states’ elections, a task that the Constitution leaves to each state,” Wisconsin’s brief said. “Wisconsin has conducted its election and its voters have chosen a winning candidate for their state. Texas’s bid to nullify that choice is devoid of a legal foundation or a factual basis.”
The Republican attempt to overturn the election in the Supreme Court, coming just days before an Electoral College majority is set to vote for Biden on Monday, is being driven by conservative allies of Trump who enjoy his political favor and claim he has been treated unfairly.
The lawsuit was filed by Ken Paxton, the Texas attorney general. Paxton is under indictment in a securities fraud case and facing separate accusations of abusing his office to aid a political donor by several former employees. He has denied the allegations. He is also a possible candidate for governor, which in Texas or most other red states would be difficult to do without a seal of approval from Trump.
According to the briefs filed by the four states that Biden won, the threshold problem was that the case did not belong in the Supreme Court at all. While the Constitution gives the court “original jurisdiction” to hear disputes between states, it exercises that jurisdiction sparingly, typically in water rights cases and border disputes. One state’s disagreement with how another state chose to conduct its elections should not qualify, the briefs said.
Nor has Texas suffered the sort of injury that would give it standing to sue, the briefs said.
“If Texas’ theory of injury were accepted,” Wisconsin’s brief said, “it would be too easy to reframe virtually any election or voting rights dispute as implicating injuries to a states and thereby invoke this court’s original jurisdiction. New York or California could sue Texas or Alabama in this court over their felon-disenfranchisement policies. Garden-variety election disputes would soon come to the court in droves.”
The briefs added that Texas had waited too long in any event.
“Disenfranchising millions of voters after Pennsylvania has already certified its election results would grievously undermine the public’s trust in the electoral system, contravene democratic principle and reward Texas for its inexcusable delay and procedural gamesmanship,” Pennsylvania’s brief said.
“While Texas waited to see the results, millions of voters relied on the settled rules,” the brief said. “Those voters should not be punished for not choosing Texas’s preferred candidate, and Texas should not be rewarded for its unreasonable delay in bringing this action.”
Last year, in ruling that the federal courts may not hear challenges to partisan gerrymandering, the Supreme Court said federal judges should not adjudicate political disputes. “Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution and no legal standards to limit and direct their decisions,” Chief Justice John Roberts wrote for the majority.
Pennsylvania quoted that decision at the conclusion of its brief. “Accepting Texas’ view,” the brief said, “would do violence to the Constitution and the framers’ vision, and would plunge this court into ‘one of the most intensely partisan aspects of American political life.’”
The Supreme Court is likely to let Texas file a response to Thursday’s briefs before it acts. Such reply briefs are typically submitted very quickly, sometimes within hours, and the justices may decide whether to entertain the suit as soon as Friday.
In theory, the court has several options, including granting a temporary injunction barring the states’ electors from voting for Biden while the case proceeds or putting the suit itself on a fast track. But by far the most likely outcome is for the court to refuse to hear the case.
In the days since Texas filed its suit, the Supreme Court has received more than a dozen friend-of-the-court briefs and motions seeking to intervene, from coalitions of red and blue states, from Trump and from politicians and scholars. Most were predictable.
But Dave Yost, Ohio’s attorney general, a Republican, filed a contrarian brief Thursday accusing Texas of inconsistency. The Constitution, he wrote, “means today what it meant a month ago.”