The latest legal challenge by President Donald Trump's supporters has been labelled as a "press release masquerading as a lawsuit". Photo / AP
The latest legal challenge by President Donald Trump's supporters has been labelled as a "press release masquerading as a lawsuit". Photo / AP
Legal experts have shredded an audacious new lawsuit challenging the results of America's presidential election in four swing states, calling it the "craziest" and "dumbest" case of the entire post-election period.
Today Texas Attorney-General Ken Paxton, a Republican, announced his intention to sue Georgia, Michigan, Pennsylvania and Wisconsin in the US Supreme Court.
Joe Biden won all four states and, so far, President Donald Trump's attempts to challenge those results in state and federal court have gone nowhere.
So Paxton is trying something radically different.
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.
You’ve been indicted on felony securities fraud charges and you are CURRENTLY under FBI investigation for abuse of political power.
This is not a lawsuit. This is a request for a pardon.
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.
Ultimately, he wants the Supreme Court to order that each state ignore its popular vote and choose its electors via the state legislature instead.
Incidentally, all four state legislatures are controlled by the Republican Party.
This all comes after the US Supreme Court today shot down another request from Republican allies of President Trump to overturn Pennsylvania's election results.
Trump campaign lawyer Rudy Giuliani at a Michigan House Oversight Committee hearing on December 2. Photo / AP
In his filing, 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 state and federal court across the country.
It also includes some rather striking claims of its own.
For example, Paxton argues the probability that President-elect Joe Biden could have won the popular vote in all four of the defendant states, given 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".
As has been explained at some length before, Trump leapt to early leads in the states Paxton refers to because it took longer to count the votes in heavily Democratic areas, which were more populous and much more likely to have a large number of mail-in votes.
The Trump campaign says Biden's comebacks in Georgia, Wisconsin, Michigan and Pennsylvania were due to widespread fraud.
It has yet to convince a single judge that there is actually any evidence to support that claim, resulting in dozens of court defeats and a series of withering judgments.
This one, written by a conservative judge Trump himself appointed, is pretty representative of the whole.
Paxton released a statement to explain his filing today, saying "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."
'Utter garbage'
Fighting words, to be sure, but they did not impress legal experts, who expressed severe doubts that the court would even agree to hear Paxton's case.
Professor Rick Hasen, an election law expert at the University of California, said Paxton's lawsuit may have replaced the one filed by Congressman Mike Kelly in Pennsylvania as "the dumbest case I've ever seen filed on an emergency basis at the Supreme Court".
"This is a press release masquerading as a lawsuit," Hasen said.
"Texas doesn't have standing to raise these claims as it has no say over how other states choose electors; it could raise these issues in other cases and does not need to go straight to the Supreme Court; it waited too late to sue; the remedy Texas suggests of disenfranchising tens of millions of voters after the fact is unconstitutional; there's no reason to believe the voting conducted in any of the states was done unconstitutionally; it's too late for the Supreme Court to grant a remedy even if the claims were meritorious (they are not).
"What utter garbage. Dangerous garbage, but garbage."
He noted that Texas's Solicitor General Kyle Hawkins, whose job it is to supervise and conduct the state's litigation in the Supreme Court, had not put his name on the lawsuit, surmising that Hawkins "surely would not sign this garbage".
CBS News' election law expert, David Becker, backed up that assessment.
"Calling this garbage might be generous," he said.
"We should try to contemplate how a party that truly respects federalism and states' rights could support such a claim, or senators and a president that seek to interfere in other states' election processes."
'Indefensible nonsense'
Steve Vladeck, a professor at the University of Texas's School of Law, wrote off the lawsuit as a "dangerous, offensive and wasteful" stunt. He also described Paxton's filing as, and I quote, "insane".
"It looks like we have a new leader in the 'craziest lawsuit filed to purportedly challenge the election' category," said Professor Vladeck.
"As others have pointed out, it's more than a little telling that Kyle Hawkins, the Solicitor General who represents the state before Scotus, is not on the filings. Good for him for refusing to associate himself with this utter and indefensible nonsense."
Vladeck stressed that Paxton needs five justices to vote in favour of granting Texas leave to file, saying it "isn't going to happen".
In addition, he said, the case has been filed so late that by the time the court reaches a decision on the matter it will no longer be relevant.
"Texas sought leave to file another novel lawsuit, against California, back in February, and the court still hasn't acted on its motion for leave to file," he pointed out.
"Yes, Scotus can hear this case. And it's possible that one or two Justices will think that it should. But it's going to take forever to decide whether to hear it, which almost certainly means the whole thing will be moot before that happens."
'The craziest case of them all'
Prominent Texas appellate lawyer Raffi Melkonian kept his assessment brief.
"The new Paxton lawsuit is not worth a lot of your time, but I mean, it doesn't make any sense and is bad and has no chance of success at all. Just want to be clear on that," Melkonian said.
Finally, Eugene Mazo from the Louis D Brandeis School of Law told Law & Crime that 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," Professor Mazo said.
"It's just unbelievable to any sane, normal person who understands the structure of our constitutional system and how it functions."
