In anticipation of the 2020 elections, Texas set a plan for its voters. Even before the coronavirus pandemic, the plan included shuttering voting locations and refusing to meaningfully expand registration or mail-in voting options. The pandemic, in turn, convinced Texas officials to race into court — but not to ensure that voters could safely cast a ballot. Instead, officials litigated to prevent voters from securing a mail-in ballot for the purpose of avoiding the virus. Republican plaintiffs, including a member of the Texas House of Representatives, tried to convince courts to invalidate the votes of over 100,000 Texans who had voted at outdoor polling locations designed to reduce risks of contagion. Yet another line of litigation saw Texas officials vigorously defending voters’ ability to enter a polling place without wearing a mask. Efforts of this sort will help Texas to retain an ignominious title: hardest state in the country in which to cast a ballot.
And yet that anti-democratic trophy appears not to be enough. At least, it is not enough for Texas Attorney General Ken Paxton, who seeks to overturn the 2020 presidential election results by suing four swing states that already have certified victories for President-elect Joe Biden. (Missouri Attorney General Eric Schmitt, also a Republican, announced late Tuesday that he was joining the lawsuit, and President Trump claimed Wednesday morning that he too would “be intervening” in the case.) Audaciously, Texas filed these claims directly in the U.S. Supreme Court.
The litigation is legally incoherent, factually untethered and based on theories of remedy that fundamentally misunderstand the electoral process. At the core, it is an uninspired retread of the many state-level claims that already have imploded since Nov. 3. Texas has simply delivered these defective claims in an even worse package.
Among the more novel flaws afflicting this lawsuit is that Texas should not have filed it. Texas does not have standing in federal court to vindicate the voting rights of other states’ voters — much less standing to undercut the rights of those voters. Independently, Texas officials should not have filed these claims directly in the Supreme Court. Filing directly is improper because other courts have been available to hear claims of this nature — and, indeed, other courts have heard and repeatedly rejected them.
Yet another, separate problem with this lawsuit relates to timing. Even if the claims were otherwise valid, Texas should not have brought them so late in the process. A fundamental principle of election law involves what’s called laches, which is a principle that prevents litigants from filing challenges after an election when they could have been brought beforehand. This principle helps to ensure that voters, when casting their ballots, can rely on the rules set in place. Texas has filed its lawsuit over a month after the 2020 elections — and on the date of the safe harbor deadline, no less, which provides further assurance that Congress will accept the electoral votes of any state that has completed its post-election processes. This lawsuit runs headfirst into a veritable wall of laches.
To pile on further, the lawsuit demands a particularly inappropriate remedy: that the Supreme Court tell other state legislatures what to do. It appears impossible to square this extraordinary demand with basic constitutional principles, much less the Supreme Court’s recently strengthened conception of states’ rights.
Each of these problems ensures that Texas’s lawsuit will fail. But it would have failed anyway, for the many reasons that so many lawsuits filed after the 2020 elections have failed. Like the others, this lawsuit seeks to invalidate the votes of a wide swath of people: here, some 20 million — 20 million — Americans across four states. And like those other lawsuits, it premises this outrageous request not on an airtight legal theory based on solid evidence, but instead on the opposite. Its substantive legal arguments make no sense. It seems to imply, for example, that the 14th Amendment precludes Wisconsin from using drop boxes and requires Georgia to empower its officials to unilaterally reject ballots. (It does neither.) Many of these arguments, in turn, are based on factual allegations that are inflammatory and not based in reality — and that repeatedly have been debunked. It is telling that the name of the Texas solicitor general, the state official typically in charge of litigation before the Supreme Court, does not appear on these filings at all. One wonders if he was too embarrassed to sign.
What, then, explains the decision of the state’s attorney general to file such a fundamentally flawed lawsuit? Theories abound. Perhaps Paxton is pandering to voters frustrated with the outcome of the 2020 presidential race. Maybe he is priming the electorate for even more onerous voting restrictions in future elections. It is possible he is engaging in indirect fundraising, or perhaps attempting to curry favor with Trump, who has been casting about desperately for a way to overturn the results of the election he lost. No doubt Paxton is in a tough position himself. He must run for office in two years. In the meantime, he is under indictment for state securities fraud and currently is the subject of a separate criminal investigation into “abuse of office” by the federal government.
Ultimately, who knows what Paxton’s motivations might be. It is hard to understand why a person in a position of public service, who has taken an oath to defend the Constitution, would challenge an election through an incendiary lawsuit that even he, surely, knows is frivolous — a lawsuit that will do nothing more than inflame, frustrate and confuse. What is clearer is that the litigation will die an ignoble death, just like all the others. The end likely will come by way of a short, dismissive order from the Supreme Court. Unfortunately, that order won’t stop Texas officials from continuing to try to chip away at the democratic process, both at home and beyond.