As early as Friday, the Supreme Court is expected to weigh in on this demand, which has taken the form of a lawsuit waged by the state of Texas, and backed by Trump and his propagandists, against four swing states that Biden won. The court will likely refuse to hear the case.
All of which is why the scorching reply brief that Pennsylvania has now filed is an extraordinarily important document. It frames the stakes with appropriate urgency, by essentially arguing that the Texas lawsuit and its supporters are, in effect, asking the court to arbitrarily and lawlessly impose the will of Trump supporters on that of the majority that rejected Trump — i.e., tyranny.
Even if the court does reject the lawsuit, it’s important for Americans to understand what Trump and his co-conspirators are attempting. Now that more than 100 House Republicans, more than 15 Republican state attorneys general and the two GOP senators running in the Georgia runoffs have endorsed this lawsuit, we should be clear on what large swaths of the GOP are really supporting.
The Texas lawsuit asks the court to invalidate the outcomes in Pennsylvania, Michigan, Wisconsin and Georgia on the grounds that the voting in them was administered illegally, a claim that largely revolves around the dramatic expansion of vote-by-mail. That could clear the way for GOP-controlled state legislatures in all four to appoint pro-Trump electors.
The Pennsylvania brief’s rebuttal
The Pennsylvania brief attacks the core of Texas’s case. While the Supreme Court has jurisdiction to hear disputes between states, the brief notes, it only does so when there is no alternative mode of resolution, and when a state’s complaint of harm done to it by another has genuine merit.
Neither applies here. On the first, Pennsylvania points out that numerous courts have already shot down the same irregularities alleged by Texas, including the falsehoods that verification standards weren’t followed and that poll-watchers weren’t allowed to witness counting. Thus all this has already found another mode of resolution.
It’s in debunking the merit of Texas’s other claim — of harm done to it — that the bigger point is made.
As the Pennsylvania brief notes, intrastate disputes that the Supreme Court has heard generally involve alleged damage done by one state to another state’s “core sovereign interests.” This might involve, say, a dispute over a boundary or a body of water.
In this case, though, Texas is instead claiming that its voters have been harmed by the supposedly illegitimate pro-Biden outcome in the four other states.
Which Texas voters were harmed by this? Why, those who voted for Trump, of course, or at least didn’t vote for Biden. Texas argues its voters were denied equal protection and due process before the law by those outcomes, which would have to refer to those voters.
As the Pennsylvania brief notes, equal protection and due process protections only apply to people’s treatment at the hands of their own states. But that aside, the brief notes, what Texas is really demanding is this:
Far from trying to vindicate its own sovereign or quasi-sovereign interests, Texas is ultimately seeking redress for the political preferences of those of its citizens who voted for President Trump.
Let us be clear. 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.
What this means is that the Texas lawsuit is asking for the invalidation of millions and millions of votes for Biden, on the grounds that their invented fraudulence harmed Texas voters. That’s tantamount to asking for the will of Texas voters to be imposed on the will of the voters in those four other states, who chose Biden as their next president.
How many votes would this invalidate? Well, in those four states, more than 20 million people voted overall, and more than 10 million people voted for Biden.
Stephen Vladeck, a law professor at the University of Texas at Austin, emails me this:
Texas is basically asking the Supreme Court to overturn the election for no other reason than because it has suspicions no one has been able to prove about mischief in other states. It’s not just a borderline frivolous legal suit; it’s an invitation to the Justices to simply substitute the preferences of a minority of voters for those of the clear majority.
We spend a great deal of time debating whether Republican elected officials endorsing this effort genuinely support its goals or instead are trying to realize other instrumental purposes, such as energizing the base or keeping Trump happy so he will endorse GOP candidates.
But even if those are also operative motivations, two core questions arise: Would not these elected Republicans be fine with this effort actually succeeding? Would they really be refraining from supporting it if they thought it could succeed?
There is just no evident reason to give them the benefit of the doubt on either of those points. But regardless, we should be absolutely clear on what the lawsuit they’re all enthusiastically supporting is really trying to accomplish.