Seventeen Republican attorneys general quickly joined the suit, and on Thursday 106 House Republicans — more than half of the party’s House contingent — joined them. All of them are essentially asking the Supreme Court to invalidate four states’ elections on behalf of other states. (Philip Bump has the full rundown on those supporting the suit.)
But about as telling as the overwhelming GOP sign-on to the dubious case is the internal GOP resistance to it.
Multiple high-ranking Republicans have rebuked the legal theory behind the case, and many House Republicans haven’t signed on. The House GOP blamed a “clerical error” Friday and said the number was actually 126 members, rather than 106, but that still leaves 70 who apparently aren’t in favor of asking the Supreme Court to intervene.
In addition, a few states with Republican governors and attorneys general now say they won’t join in the case. Their arguments: This would open the door to other states dictating what their own states can do.
Arizona’s and Georgia’s GOP attorneys general, Mark Brnovich and Chris Carr, didn’t sign on for obvious reasons, given it’s their states whose elections other states are seeking to overturn. But they now have some company.
Despite pressure from the Wyoming state Republican Party, for instance, Wyoming Gov. Mark Gordon (R) said Thursday that his state and the attorney general, Bridget Hill (R), wouldn’t join in.
“After significant consideration, we believe that the case could have unintended consequences relating to a constitutional principle that the state of Wyoming holds dear — that states are sovereign, free to govern themselves,” Gordon said.
In neighboring Idaho, Attorney General Lawrence Wasden (R) offered a similar argument. He acknowledged his decision wouldn’t be popular in the GOP-dominated state, but said it was “legally correct” and necessary to protect the state’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,” Wasden said Thursday. “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.”
Ohio Attorney General Dave Yost (R) went further than any fellow Republican attorney general, actually filing a brief Thursday in the Supreme Court opposing Texas’s effort. He encouraged the court to rule on the constitutionality of one state challenging another’s election, but said the Supreme Court has no authority to tell states how to appoint presidential electors.
“The relief that Texas seeks would undermine a foundational premise of our federalist system: the idea that the States are sovereigns, free to govern themselves,” Yost said. “The courts have no more business ordering the People’s representatives how to choose electors than they do ordering the People themselves how to choose their dinners.”
Indeed, the federalist argument against the Supreme Court intervening is the kind of thing a pre-Trump Republican Party would have seemed to support. But the effort has gotten significant buy-in from Republicans across the country despite a lack of proof of widespread voter fraud and the fact that it could overturn an election without such proof.
Alaska has also weighed in since the 18 state GOP attorneys general (including Texas’s) began supporting the effort. Alaska Gov. Mike Dunleavy (R) — whose state’s attorney general is appointed by the governor — said Thursday that his state would join in Texas’s effort.
That means that so far 19 states and GOP attorneys general support the effort and five are opposed. Two states and their attorneys general have yet to weigh in: New Hampshire and Attorney General Gordon MacDonald and Kentucky and Attorney General Daniel Cameron — the only GOP-controlled Southern state not to join in. (Neither attorney general had responded to a request for comment Friday afternoon.)
Among the House Republicans who signed on initially was House Minority Whip Steve Scalise (R-La.). The top House Republican, Minority Leader Kevin McCarthy (R-Calif.), wasn’t among the 106 on Thursday, but he was included Friday. Despite the supposed “clerical error,” though, McCarthy punted on the matter Thursday, declining to endorse it and saying merely, “The president has a right for every legal challenge to be heard. He has the right to go to the Supreme Court with it, yes.”
The No. 3 official, Republican Conference Chairman Liz Cheney (R-Wyo.), has yet to sign on and has encouraged Trump to respect “the sanctity of our electoral process” if he can’t prove fraud. And GOP senators — with the notable exception of Sen. Ted Cruz (Tex.), who wants to argue the case at the Supreme Court — are so far keeping their powder dry, which also says plenty.
There is likely much to be gained by some Republicans joining in the effort, given how much the GOP base subscribes to the idea that the election was stolen. It’s the overwhelmingly obvious political conclusion. That so many still refuse to join in this effort, though, is also instructive.