Last Updated on December 9, 2020
Texas Attorney General Ken Paxton took the legal world by storm Tuesday with a 92-page, 8,961-world Supreme Court filing to challenge the results of the 2020 election. Lawyers across the political spectrum reacted over Twitter with joy and dismay over the surprising strength of its claims.
As National File previously reported, the crux of the lawsuit is that the swing states of Pennsylvania, Georgia, Michigan and Wisconsin violated their duties under the US Constitution by illegally altering election procedures in violation of their own laws.
This not only includes allegedly unconstitutional acts by legislatures and executive fiat, but also “friendly lawsuits” where Secretaries of State would engage in settlement agreements with Democrat groups which illegally bound their states to a wish-list of left-wing election tweaks.
The theory goes that the Constitution is a compact whereby states agree to conduct their elections according to the rule of law and, if one state fails to do so, it harms the other states. As such, the Supreme Court is the only appropriate venue to litigate such disputes and the only possible remedy is a contingent election in the US House of Representatives, which President Trump is projected to win.
The case is officially docketed with the Supreme Court, which has original and final jurisdiction over the matter. That means that the litigants do not have to file for a writ of certiorari and that the Supreme Court is obligated to consider the case on its merits.
The defendants’ response is due Thursday, December 10th by 3pm ET.
National File also reported that Lousiana is joining in the Texas lawsuit, but more are coming in by the hour. The Attorneys General of Alabama, Arkansas and Missouri have all tweeted out their intent to join the fray.
Top constitutional attorney Robert Barnes, who went viral in mid-November for publicizing a crowd-sourcing archive of 2020 election fraud evidence, released a 15-minute video highlighting the reasons why he thinks the Texas lawsuit is Team Trump’s best chance of overturning the disputed results of the 2020 election.
Calling it potentially “a complete gamechanger”, Barnes laid out his reasoning:
If the Supreme Court is going to get involved, the Texas case is far more likely the case to do so than any other case. The reason for that is because the Texas case presents an easy means for them to resolve the issue without getting into the kind of nest of issues that the other cases attract. It also allows them to do sort of a one-stop-shop case to resolve all of it.
Legal scholar Hans Mahncke also weighed in, saying that the Texas suit is “Easily the best case” and that “This is the real kraken”.
Finally got a chance to read the Texas lawsuit. This is the real legal
kraken, cogent and extremely well-written, with lots of tentacles. They even built in some insurance by making it both about this and future elections. Easily the best case. Amazing how they kept it quiet too.
— Hans Mahncke (@HansMahncke) December 9, 2020
Top Republican election lawyer and, famously, President Trump’s top impeachment defense attorney called the suit a “critical case”.
The lawsuit filed by Texas against other states as a matter of original jurisdiction at the Supreme Court is a critical case, aiming to defend the Constitution against violations of the law by other states and protect the integrity of our elections. https://t.co/715mzHfv5z
— Jay Sekulow (@JaySekulow) December 8, 2020
Viva Frei, a popular “Montreal litigator-turned-Youtuber” who does a weekly podcast with Barnes, made an enthusiastic 21-minute “Vlawg” about the case. Speaking from an outsider perspective without American political preconceptions, Frei expressed amazement at Paxton’s audacity, legal reasoning and meticulous documentation of election law violations.
Let me tell you… this is a well-drafted lawsuit! It is an election lawsuit and the next time someone tells you that there were no voter irregularities anywhere in this election, tell them to READ THIS LAWSUIT!
Margot Cleveland, a law professor and regular columnist at the Federalist, opened up a discussion on her Twitter feed. She was impressed with the seriousness of the suit but initially expressed skepticism that the Supreme Court would run with it. However, after discussing it in-depth, the did agree with Mahncke that this was Team Trump’s best case moving forward and promised an in-depth article to be published Wednesday.
2/deny Texas' request for relief, basically reasoning that the state legislatures could name the electors if they wanted to and by not doing so they are ratifying the results. In other words, Texas can't force MI, WI, PA, and GA state legislatures to remember we're a Republic.
— Margot Cleveland (@ProfMJCleveland) December 8, 2020
I'll argue the other side. SCOTUS may well (and should) allow TX to proceed: 1) gets all of the issues and states before the Court immediately; 2) does so w/o the Kraken craziness or even fraud bs; 3) aises constitutional issues that SCOTUS has already identified for resolution.
— Richard A Harrison (@RAHarrisonPA) December 8, 2020
Even lawyers typically hostile to Trump-related suits admitted that there is a solid legal argument that the Supreme Court must consider the case and can’t simply ignore it.
This is a serious question. There's a serious argument that there's mandatory jurisdiction in such state v state cases https://t.co/iMgueR4d20
— Jonathan H. Adler (@jadler1969) December 9, 2020
But there were more dismayed reactions from the Left as well. Harvard Professor Laurence Tribe, widely considered the Left’s most talented Supreme Court litigator, decried the suit as a ridiculous invitation to a “cascade” of frivolous interstate litigation.
This is truly ridiculous. If the 50 sister States could sue one another to overturn each other’s election results, there’d be a mind-blowing cascade of at least 50! (ie 50 x 49 x 48 x … x3 x2) intra-family Electoral College megasuits. Endless! https://t.co/vFyqScuJwA
— Laurence Tribe (@tribelaw) December 8, 2020
University of Texas Law Professor Steve Vladek followed up by ridiculing the possibility that the Supreme Court would even hear the case. He cited the one-line rejection of the Pennsylvania election suit as evidence that the court has no patience for similar claims.
And for those who will inevitably say “but see the new Texas suit,” just stop. If the Court had any interest in the issues raised in these cases, it would’ve stepped in here. That no Justice publicly dissented here is a pretty clear message about where that case is going, too.
— Steve Vladeck (@steve_vladeck) December 8, 2020
Rank-and-file leftists across Twitter desperate for a comeback to conservative enthusiasm for the Texas suit started copy-pasting a quote from a CNN interview of a “Republican” dismissing the validity of the case.
GOP election law atty Ben Ginsberg, says no chance for Paxton suit:
"Absolutely not. The notion that a Texas attorney general is going to try and disenfranchise the voters from four other states for laws that were in effect on Election Day is just not meritorious in the least." pic.twitter.com/bwe3b2iSYJ
— Ken Herman (@kherman) December 8, 2020
The alleged Republican in question, Ben Ginsberg, is an MSNBC political analyst. He was a member of the Bush and Romney legal teams who later served as an Obama Administration appointee. In 2013, he submitted a brief to the Supreme Court arguing that the popular vote against legalizing gay marriage in California should be ignored. In September of 2020, he published an article in the Washington Post condemning President Trump and claiming that “there’s no proof of widespread fraud” in American elections in general.
To the horror of left-wing commentators, President Trump then capped off the discussions this morning by warning he would be “INTERVENING” in the case.