Texas election lawsuit rejected by Supreme Court

UPDATE: 3:51 p.m.: CNN reported moments ago that the U.S. Supreme Court has rejected the lawsuit seeking to over turn the election results in Pennsylvania, Michigan, Georgia and Wisconsin, with no vote count but no dissents. “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot,” the Court wrote.

By Mike Weland

Texas Attorney General Ken Paxton

Alleging that the states of Pennsylvania, Georgia, Michigan and Wisconsin “violated statutes enacted by their duly elected legislatures, thereby violating the Constitution,” State of Texas v. Pennsylvania et al now before the U.S. Supreme Court has now gained the support of 18 state attorneys general and over 100 House Republicans, including Idaho Congressmen Russ Fulcher and Mike Simpson.

President Donald Trump, who could remain in office if the suit is successful, filed a brief in support of the Texas suit as well.

Filed by Texas Attorney General Ken Paxton, the lawsuit argues that the actions of the four states, all of which certified their general elections in favor of Democrat Joe Biden, taints the integrity of the elections process in Texas and all other states that held lawful elections.

“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,” Paxton wrote. “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 this egregious error.”

All four states named in the complaint have filed amicus briefs in opposition. The Supreme Court docket of proceedings and orders in the case can be found here.

President Donald J. Trump. Official White House photo by Shealah Craighead

“Texas’s equal protection claim fails where it does not identify a group that has been given preference or advantage—the hallmark of such a claim,” Michigan Attorney General Dana Nessel writes. “And there has been no devaluation of any person’s — or group of persons’ — votes above or beneath any others’. There has been no violation of equal protection. Texas fails to establish any of the requisite factors necessary for granting an injunction. It has no likelihood of success on the merits of its claims, and the remaining factors strongly weigh in favor of denying the extraordinary relief Texas seeks—disenfranchising millions of voters. This Court should deny Texas’s motion to file a bill of complaint and its motion for injunctive relief.”

Amicus curiae, or “friends of the court” briefs are third party requests asking the court to consider their arguments, for or against.

Idaho Lieutenant Governor Janice McGeachin and 39 state senators and representatives from Idaho, Alaska and Arizona, “disenfranchised by the unconstitutional actions, fraud, and other irregularities of the Defendant States” filed in support of the Texas suit, including District 1 Representatives Sage Dixon and Heather Scott.

Washington, D.C. and 22 states and territories filed a brief in opposition, showing just how divisive this issue of election fraud still is, even after lower courts, having heard the allegations now reiterated in the Texas case, have already dismissed 50 of 51 suits filed attempting to show that rampant and systemic fraud unfairly denied President Trump a second term, even while those same state elections returned most Republican senators and congressmen to their seats.

Idaho Governor Brad Little said in a statement Thursday that he proudly stands with the Idaho Republican Party in supporting Texas in its efforts to ensure American’s elections meet the highest standards and expectations of the U.S. Constitution, and he will file an amicus brief in support of the lawsuit.

Montana Governor Steve Bullock

“Idaho’s elections are safe and secure, and we expect the same of other states. Protecting the sanctity of the voting process is paramount to ensuring a strong democratic process, and our citizens need the confidence that their vote counts,” Little wrote.

Idaho Attorney General Lawrence Wasden chose not to sign on, saying “I’ve spent substantial time reviewing Texas’s Bill of Complaint so I could fully understand and consider the legal arguments being made. After doing so, I am declining to join this effort.

“As I have done since the day I took my oath of office – in which I pledged to uphold and protect both the Idaho and U.S. constitutions – I strive to protect the State of Idaho’s legal interests. As is sometimes the case, the legally correct decision may not be the politically convenient decision. But my responsibility is to the State of Idaho and the rule of law.

“This decision is necessary to protect Idaho’s sovereignty. As Attorney General, I have significant concerns about supporting a legal argument that could result in other states litigating against legal decisions made by Idaho’s legislature and governor. Idaho is a sovereign state and should be free to govern itself without interference from any other state. Likewise, Idaho should respect the sovereignty of its sister states.”

Montana Governor Steve Bullock, a Democrat, filed in opposition, saying, in effect, that if the complaint were truly over state legislatures violating constitutional requirements in making changes to their state’s election laws due to COVID-19, they would include in their complaints states such as Montana, where changes were made to voting law and President Donald Trump prevailed. The implication is that states holding “lawful elections” as referenced in Paxton’s complaint, refer to states that voted for President Trump.

Idaho First District Representative Heather Scott

“Texas chose not to include the State of Montana, where President Trump and other Republicans were successful in a mail ballot election conducted to reduce the impact of COVID — underscoring, of course, that this action is less about election integrity than it is about attempting to overturn the will of the electorate,” he wrote. “But if Texas is successful in its suit, it would destabilize the results of elections in Montana and any other state that took valid state-law actions to minimize the impact of the virus on voting, including states that delivered victories to Republican candidates using mail ballots.”

The Texas complaint requests a “temporary restraining order, preliminary injunction, stay, and administrative stay to enjoin Defendant States from certifying their presidential electors or having them vote in the electoral college.”

The electoral college vote takes place on Monday.

The suit alleges that “Even without Defendant States’ challenged actions here, the election nationwide saw a massive increase in fraud-prone voting by mail … Plaintiff State has not had the benefit of formal discovery prior to submitting this original action. Nonetheless, Plaintiff State has uncovered substantial evidence discussed below that raises serious doubts as to the integrity of the election processes in Defendant States.”

Some of those allegations include:

— Jesse Jacob, a decades-long City of Detroit employee assigned to work in the Elections Department for the 2020 election testified that she was “instructed not to look at any of the signatures on the absentee ballots, and I was instructed not to compare the signature on the absentee ballot with the signature on file” in direct contravention of MCL § 168.765a(6), which requires all signatures on ballots be verified.

That allegation was dismissed as unpersuasive by Michigan Judge Timothy Kenny on November 13.

Idaho Governor Brad Little

“The allegations made by Ms. Jacob are serious,” Kenny wrote. “In the affidavit however, Ms. Jacob does not name the location of the satellite office, the September or October date these acts of fraud took place, nor does she state the number of occasions she witnessed the alleged misconduct. Ms. Jacob in her affidavit fails to name the city employees responsible for the voter fraud and never told a supervisor about the misconduct. Ms. Jacob’s information is generalized. It asserts behavior with no date, location, frequency, or names of employees … Ms. Jacob only came forward after the unofficial results of the voting indicated former Vice President Biden was the winner in the state of Michigan.”

— Ethan J. Pease, a box truck delivery driver subcontracted to the U.S. Postal Service to deliver truckloads of mail-in ballots to the sorting center in Madison, Wisconsin, testified that USPS employees were backdating ballots received after November 3, 2020. Further, Pease testified how a senior USPA employee told him on November 4, 2020 that “An order came down from the Wisconsin/Illinois Chapter of the Postal Service that 100,000 ballots” and how the USPSA dispatched employees to “find … the ballots.” One hundred thousand ballots “found” after election day far exceeds former Vice President Biden margin of 20,565 votes over President Trump.

This allegation arose after Pease told the story, landing him at an appearance on OAN December 1 and subsequent interviews on Fox. His testimony has been dismissed as irrelevant; even if true, the date the alleged impropriety occurred, November 4, makes the allegation moot … On October 26, the U.S. Supreme Court ruled that absentee ballots could only be counted if returned by election day, November 3 after Democrats and nonpartisan groups asked to allow ballots to be counted if postmarked by election day even if they came in later.

That request was denied and election workers across the state only counted ballots received by 8 p.m. November 3.

Idaho First District U.S. Representative Russ Fulcher

— On August 7, 2020, the League of Women Voters of Pennsylvania and others filed a complaint against Secretary Boockvar and other local election officials, seeking “a declaratory judgment that Pennsylvania existing signature verification procedures for mail-in voting” were unlawful for a number of reasons, League of Women Voters of Pennsylvania v. Boockvar, which the Pennsylvania defendants quickly settled resulting in guidance issued on September 11, 2020, stating in relevant part: “The Pennsylvania Election Code does not authorize the county board of elections to set aside returned absentee or mail-in ballots based solely on signature analysis by the county board of elections.”

As a result of the decision, supported by president Trump, the State of Pennsylvania immediately relaxed verification rules for processing mail-in ballots, doing away with the requirement of signature analysis.

“Once the qualified voter’s absentee or mail-in application is approved, the voter is mailed a ballot with instructions and two envelopes,” Pennsylvania Secretary of State Kathy Boockvar wrote. “The outer envelope includes both a unique correspondence ID barcode that links the envelope to the qualified voter’s application and a pre-printed Voter’s Declaration that the voter must sign representing that the voter is qualified to vote the enclosed ballot and has not already voted.”

“We at the Urban League of Greater Pittsburgh are encouraged by the outcome, which will better protect our members, clients and all Pennsylvania voters’ ability to vote by mail without unjustifiable interference by election officials,” said Esther Bush, president and CEO of the Urban League of Greater Pittsburgh. “This is a significant step in what the Urban League considers to be the right direction on our journey toward removing all barriers to civil rights and economic parity.”

Idaho Attorney General Lawrence Wasden

The lawsuit was dismissed September 14.

— The probability of former Vice President Biden winning the popular vote in the four Defendant States—Georgia, Michigan, Pennsylvania, and Wisconsin— independently given President Trump’s early lead in those States as of 3 a.m. on November 4, 2020, is less than one in a quadrillion, or 1 in 1,000,000,000,000,000. For former Vice President Biden to win these four States collectively, the odds of that event happening decrease to less than one in a quadrillion to the fourth power (i.e., 1 in 1,000,000,000,000,0004).

According to Politifact, this claim assumes votes in the November election were uniformly distributed across every county.

“Building on that assumption,” they write, “it says the late swings to Biden in four key states were statistically virtually impossible. But the last votes to be counted weren’t a random sample — they were absentee ballots and from large cities, both groups that swing very heavily to Democrats. Given which votes were uncounted in the wee hours of November 4, the swing to Biden was expected, logical and legitimate.”

Particularly if you remember that in the months leading up to the November 3 election, president Trump repeatedly called mail-in voting extremely prone to fraud and abuse and encouraged his supporters not to vote absentee and to cast ballots in person.

— The two Republican members of the Board rescinded their votes to certify the vote in Wayne County, and signed affidavits alleging they were bullied and misled into approving election results and do not believe the votes should be certified until serious irregularities in Detroit votes are resolved.

Idaho First District Sage Dixon

According to the Detroit Free Press, this occurred November 17 as “Canvassers Monica Palmer and William Hartmann have claimed the promises made to them of a ‘comprehensive audit’ of the Nov. 3 election should they certify ‘will not be fulfilled.'”

Tracy Wimmer, a spokeswoman for Secretary of State Jocelyn Benson, said Michigan state law sets a deadline of 14 days for every county to certify its election votes and that Wayne County’s 14-day clock had already expired by the time the two made their announcements.

“There is no legal mechanism for them to rescind their vote,” Wimmer said. “Their job is done, and the next step in the process is for the Board of State Canvassers to meet and certify.”

“The evening before the two Republican canvassers on the Wayne County elections board signed the affidavits, President Donald Trump spoke with both Monica Palmer and William Hartmann on Tuesday after the second vote to certify the results, ABC News reported November 19. “‘The two harassed patriot Canvassers refuse to sign the papers!’ President Donald Trump tweeted Wednesday morning, an early sign of a possible fight over whether the GOP members signed documents related to the certification.”

The remaining nine evidentiary points in the suit are all variations on these.

The president, meanwhile, Tweets.

“Now that the Biden Administration will be a scandal plagued mess for years to come, it is much easier for the Supreme Court of the United States to follow the Constitution and do what everybody knows has to be done,” he Tweeted this morning. “They must show great Courage & Wisdom. Save the USA!!!”

While action by the Supreme Court could come at any time, all was silent  as of 1 p.m. Pacific today.

“If the Supreme Court shows great Wisdom and Courage, the American People will win perhaps the most important case in history, and our Electoral Process will be respected again!” Trump Tweeted at about 12:30 p.m. Pacific.