‘This is the big one’: 17 US states support new election lawsuit from Texas

Donald Trump has hailed a new election lawsuit as the one “everyone has been waiting for”, and almost 20 US states are supporting it.

US President Donald Trump says a new election lawsuit from Texas is “the big one” in his fight to overturn his defeat to Joe Biden.

The lawsuit in question has won support from the attorneys-general of 17 Republican states, and the US Supreme Court has indicated it will be dealt with quickly.

We’ll delve into the details shortly.

Mr Trump went on a bit of a Twitter spree this morning, repeating a number of his usual claims about widespread voter fraud.

“We will soon be learning about the word ‘courage’, and saving our country,” he said in one of the posts.

“I received hundreds of thousands of legal votes more, in all of the swing states, than did my opponent.

“All data taken after the vote says that it was impossible for me to lose, unless fixed!”

As always, I am obliged to point out that these claims are baseless. Mr Trump’s legal team has yet to prove a single vote was fraudulent, let alone hundreds of thousands of votes across multiple states.

Pressed for evidence, the President’s lawyers have offered debunked internet conspiracy theories and testimony from witnesses who say they saw misconduct.

Few of those witnesses’ claims have actually been tested in court. When they have, judges have found them to be uninformed or “simply not credible”.

So far, the President and his allies have lost more than 50 times in court, with judges repeatedly lamenting the lack of any substantive proof supporting their allegations.

To give you the most recent example we have, last night the Arizona Supreme Court rejected an appeal challenging Mr Biden’s victory in the state, saying the plaintiffs had failed to “present any evidence of misconduct or illegal votes”.

Sorry, I know you’re thoroughly sick of reading that entire spiel by now, but if Mr Trump keeps saying these things we have to keep fact-checking him.

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Not much success in court yet for Mr Trump. Picture: Mandel Ngan/AFP

Anyway, in the middle of this morning’s tweetstorm, Mr Trump brought up yesterday’s decision from the US Supreme Court, which denied a request for injunctive relief filed by Republicans in Pennsylvania.

The lawsuit, led by Congressman Mike Kelly, sought to prevent Pennsylvania from doing anything more to certify its election result, pending further legal action in the lower courts.

“The application for injunctive relief presented to Justice Alito and by him referred to the court is denied,” the Supreme Court said in a brief order shooting down the request.

When I say brief, by the way, I mean it was one sentence long. You just read the whole thing.

None of the nine Supreme Court Justices, six of whom are conservative and three of whom were appointed by Mr Trump, publicly dissented.

To be clear, that doesn’t necessarily mean no one dissented in private. We don’t know what happened behind closed doors. All we know is that no Justice publicly opposed the decision.

In his tweets today, Mr Trump stressed that the request denied by the Supreme Court was “not my case, as has been so incorrectly reported”.

I’m not really sure what he was talking about there, to be honest. All the reporting I’ve seen has correctly identified Pennsylvania Republicans, rather than Mr Trump, as the source of the lawsuit in question.

That reporting has also noted, again correctly, that the court’s decision is a further blow to Mr Trump’s chances of overturning his defeat. That is indisputably true.

While downplaying the importance of the Pennsylvania case, however, Mr Trump very much talked up the significance of another lawsuit, which was launched by Texas Attorney-General Ken Paxton yesterday.

The President described it as “the case everyone has been waiting for”.

“This is the big one,” Mr Trump said, signalling his legal team’s intention to join the lawsuit.

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This was not my case as has been so incorrectly reported. The case that everyone has been waiting for is the State’s case with Texas and numerous others joining. It is very strong, ALL CRITERIA MET. How can you have a presidency when a vast majority think the election was RIGGED? https://t.co/ZKu9sNVz2U

— Donald J. Trump (@realDonaldTrump) December 9, 2020

We will be INTERVENING in the Texas (plus many other states) case. This is the big one. Our Country needs a victory!

— Donald J. Trump (@realDonaldTrump) December 9, 2020

So, what exactly is this game-changing case?

Mr Paxton, a Republican, is seeking to sue four swing states won by Mr Biden – Georgia, Michigan, Pennsylvania and Wisconsin – in the Supreme Court.

As I mentioned earlier, all attempts to challenge those states’ results in state and federal court have gone nowhere in the five weeks since election day.

So, Mr Paxton is trying something radically different.

The following explanation will be familiar to you if you read our story on the matter yesterday, so feel free to skip ahead.

The Supreme Court is usually an appellate court, meaning the only way for a case to end up before it is if that case gets appealed through the lower courts first.

There is an exception to that rule. The Supreme Court has original jurisdiction over legal disputes between states – i.e. the American equivalent of New South Wales suing Victoria. These cases start at the Supreme Court level.

However, the court is not obliged to hear them. So, the first step here is for Texas to seek leave to file a complaint – in essence, to convince a majority of the nine Justices they should indeed take the time to hear its lawsuit.

That is what Mr Paxton is doing.

Ultimately, he wants the Supreme Court to order that all four states in question ignore their popular vote totals, which show Mr Biden winning, and choose their electors via their respective state legislatures instead.

Incidentally, these state legislatures are all controlled by the Republican Party.

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Mr Paxton believes Mr Biden’s victories in four swing states were illegitimate. Picture: Chip Somodevilla/Getty Images/AFP

In his filing, Mr Paxton argues the states in question “exploited the COVID-19 pandemic” to enact “last-minute changes” to their electoral rules, “skewing” the outcome of the election.

The full motion, which you can read here, contains many of the same allegations that have already been thrown out of courts across the country.

It also includes some rather striking claims of its own.

For example, Mr Paxton argues the probability that Mr Biden could have won the popular vote in all four of the defendant states, given Mr Trump’s early lead in them “as of 3am on November 4”, was “less than one in a quadrillion, or 1 in 1,000,000,000,000,000”.

He cites “expert analysis using a commonly accepted statistical test”.

In a statement released yesterday, explaining his filing, Mr Paxton said “trust in the integrity of our election processes is sacrosanct”.

“Georgia, Michigan, Pennsylvania and Wisconsin destroyed that trust and compromised the security and integrity of the 2020 election,” he said.

“The states violated statutes enacted by their duly elected legislatures, thereby violating the Constitution.

“By ignoring both state and federal law, these states have not only tainted the integrity of their own citizens’ vote, but of Texas and every other state that held lawful elections.

“Their failure to abide by the rule of law casts a dark shadow of doubt over the outcome of the entire election. We now ask that the Supreme Court step in to correct his egregious error.”

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Mr Trump addressing supporters at a rally in Georgia on Saturday. Picture: Andrew Caballero-Reynolds/AFP

Legal experts are quite certain this lawsuit will fail. And that is putting it mildly.

I won’t retread all the same ground we covered 24 hours ago, but here are a few samples of their scepticism.

Professor Rick Hasen, an election law expert from the Irvine School of Law, called Mr Paxton’s lawsuit “the dumbest case I’ve ever seen filed on an emergency basis at the Supreme Court”, “a press release masquerading as a lawsuit” and “utter garbage”.

Professor Steve Vladeck, from the University of Texas School of Law, said it was “insane”, “offensive” and “wasteful”.

“It looks like we have a new leader in the ‘craziest lawsuit filed to purportedly challenge the election’ category,” he quipped, going on to describe Mr Paxton’s arguments as “utter and indefensible nonsense”.

Writing for Bloomberg, Harvard University law Professor Noah Feldman said the lawsuit was “a piece of theatre, not a credible legal strategy”.

“The Texas lawsuit is literally asking the court to disqualify the electors from the four swing states that went to Biden. That would plunge the country into a constitutional crisis. It would be the end of democracy in the United States,” Prof Feldman said.

“In Trump’s fantasy world, apparently shared by Paxton, the Supreme Court will engage in a constitutional coup d’etat and give Trump a second term. This idea is based on a view of the court as entirely partisan. It’s disrespectful of the rule of law.”

And Professor Eugene Mazo, from the Louis D. Brandeis School of Law, told Law & Crime Mr Paxton’s lawsuit was the “craziest case” of the post-election period.

“This is the dumbest case any lawyer has ever seen, and the Supreme Court won’t touch it. Really, this is the craziest case of them all. Unbelievable,” he said.

The one fundamental problem with the case, according to these experts, is that Texas has no standing to raise Mr Paxton’s claims in court, because it has no say over how other states choose their presidential electors.

Under America’s electoral system, each state sets its own rules. Texas decides how it wants to run its election, Pennsylvania chooses how to run its election, and so forth. Pennsylvania does not get to sue Texas if it doesn’t like how that state’s system works, and vice versa.

At least, that’s what the experts say. We will see how the case plays out.

Mr Trump hopes the Supreme Court will help him stay in power. Picture: Eric Baradat/AFP

So, what next? The Supreme Court has asked for responses to Mr Paxton’s filing by tomorrow, which suggests this case will move very quickly.

We’ve already had one such response - a brief filed by those 17 Republican attorneys-general I mentioned earlier, in support of Texas’s position.

“The allegations raise important constitutional issues,” the brief argues.

“They also raise serious concerns relating to election integrity and public confidence in elections.

“These are questions of great public importance that warrant this court’s attention.”

That brief doesn’t change any of the legal arguments, but it does give Mr Paxton’s petition a little bit more weight.

Meanwhile, Republicans in Congress are being urged to join an amicus brief of their own expressing their concern about the integrity of the election. Louisana Congressman Mike Johnson is circulating the request.

“President Trump called me this morning to express his great appreciation for our effort to file an amicus brief in the Texas case on behalf of concerned members of Congress,” Mr Johnson wrote in an email obtained by CNN anchor Jake Tapper.

“He specifically asked me to contact all Republican members of the House and Senate today and request that all join on to our brief. He said he will be anxiously awaiting the final list to review.”

Email to every member of House GOP from ⁦@RepMikeJohnson⁩, R-LA, soliciting signatures for an amicus brief in the longshot Texas lawsuit seeking to invalidate electoral college votes from GA MI PA and WI. Trump is “anxiously awaiting the final list” to see who signs on. pic.twitter.com/QrksypyHv9

— Jake Tapper (@jaketapper) December 9, 2020

Whatever happens here, then, Mr Trump will not be able to distance himself from this case. He has gone all in.