The lawsuit was part of a blizzard of litigation and personal interventions Trump and his lawyers have waged to overturn victories by Biden in a handful of key states. But time is running out, and the electoral college is scheduled to meet in less than a week.
Tuesday afternoon, just before the court’s order was released, Trump appealed for help in his boast that he had won, rather than lost, reelection.
“Now, let’s see whether or not somebody has the courage, whether it’s a legislator or legislatures, or whether it’s a justice of the Supreme Court, or a number of justices of the Supreme Court — let’s see if they have the courage to do what everybody in this country knows is right,” Trump said.
The Pennsylvania petition was considered a long shot — it asked the court to take the rare step of wading into a dispute over state law decided by a state supreme court. But the justices’ curt dismissal does not bode well for other requests that involve overturning election results.
Texas Attorney General Ken Paxton (R) on Tuesday filed a brash and sweeping complaint that asked the court to overturn Biden’s wins in the swing states of Pennsylvania, Michigan, Wisconsin and Georgia.
Michigan Attorney General Dana Nessel (D) called it a “publicity stunt, not a serious legal pleading.”
“Mr. Paxton’s actions are beneath the dignity of the office of attorney general and the people of the great state of Texas,” Nessel said.
The Supreme Court told the four states to respond by Thursday afternoon.
In Pennsylvania, Trump called the state House speaker twice during the past week to make an extraordinary request for help reversing his loss in the state. But Speaker Bryan Cutler (R) told the president he had no authority to step in or to order the legislature into special session, a Cutler spokesman told The Washington Post.
But Republican members of the legislature and Congress supported the challenge that the U.S. Supreme Court dispensed with Tuesday, which involved changes made to Pennsylvania’s voting system in 2019 by the state’s GOP-controlled General Assembly.
A group of Republican candidates led by U.S. Rep. Mike Kelly (Pa.) challenged Act 77, the law that established universal mail voting, claiming that the legislature had acted beyond its authority in approving it.
But the Pennsylvania Supreme Court said the challenge was filed too late — only after the votes were cast and the results known. Biden won the state by a more than 80,000-vote margin.
The unanimous decision by the Pennsylvania Supreme Court blamed petitioners for a “complete failure to act with due diligence in commencing their facial constitutional challenge, which was ascertainable upon Act 77’s enactment.”
The decision noted, too, that some of the petitioners had urged their supporters to cast their ballots using the new mail-in procedure.
The U.S. Supreme Court rarely intervenes in a decision of a state supreme court interpreting its own constitution and laws. But the plaintiffs asserted that the system raised federal issues. Although acknowledging that it is up to states to develop election procedures, the claim was that the federal Constitution was violated if the Pennsylvania legislature expanded the mail-in procedure without proper authority from the state constitution.
Further, they claimed that the individual constitutional rights of Kelly and the others were violated. Their theory was that, as the Pennsylvania Supreme Court dismissed the challenge because it was filed too late, they were denied due process.
Their suggested remedy was to invalidate all votes cast by mail in the general election — more than 2.5 million in total — or to dismiss the outcome of the election altogether so that the state legislature could appoint its own slate of presidential electors.
Pennsylvania’s lawyers told the U.S. Supreme Court that that was a shocking request — “nothing less than an affront to constitutional democracy” that would ensnare the judiciary “in partisan strife.”
“Petitioners ask this court to undertake one of the most dramatic, disruptive invocations of judicial power in the history of the Republic,” Pennsylvania’s response said. “No court has ever issued an order nullifying a governor’s certification of presidential election results.”
Pennsylvania’s lawyers said there was no conflict between the state constitution and Act 77, and that the specific requirements in the document were for absentee voting, not mail-in ballots. Their brief noted that the legislature had set a 180-day window for raising constitutional objections to the plan, which the challengers ignored.
And it argued that the claims of a due-process violation were undercut by the relief Trump allies seek.
“They do not explain how a remedy premised on massive disenfranchisement would accord with the Due Process Clause, which requires the counting of votes cast in reasonable reliance on existing election rules as implemented and described by state officials,” the state’s response said.
The Texas filing is another that seeks to overturn election results.
All four states targeted have certified their election results, and all but Wisconsin appeared on track to meet Tuesday’s “safe harbor” deadline, which privileges those certifications under federal law when it is time for Congress to tally electoral votes. One legal challenge to the Wisconsin recount remained pending in state court, potentially blocking the state from taking advantage of the cutoff.
Legal experts called the suit highly unusual and said it raises several questions, including whether Texas has standing to bring a retroactive complaint over how other states enforce their election statutes. The Constitution says it is up to individual states to set the terms for elections.
The complaint filed by Paxton was a grab-bag of allegations about voting in the four states that have been largely rejected by individual courts. He sketched out a dark conspiracy to throw the election to Biden.
“Using the COVID-19 pandemic as a justification, government officials in the defendant states of Georgia, Michigan, and Wisconsin, and the Commonwealth of Pennsylvania usurped their legislatures’ authority and unconstitutionally revised their state’s election statutes,” the complaint states, referring to the disease caused by the novel coronavirus. “They accomplished these statutory revisions through executive fiat or friendly lawsuits, thereby weakening ballot integrity. Finally, these same government officials flooded the . . . states with millions of ballots.”
At one point, the complaint repeats discredited theories that Biden was rescued by a late dump of ballots, saying that as of 3 a.m. on the morning after the election, Biden’s chances at winning all four states was “less than one in a quadrillion.”
The complaint asks the court to extend the deadline for the electoral college’s meeting, set for Dec. 14, and to disallow electors from the four states. In a separate request for an injunction, it suggests an alternative: that the court vacate the states’ elector certifications “from the unconstitutional 2020 election results” and allow the state legislatures to appoint electors.
A constitutional provision allows states to sue one another at the Supreme Court without going through lower courts. Usually, the subject matter is something such as water rights. In 2016, the court turned down an attempt by Nebraska and Oklahoma to object to Colorado’s liberalized laws on recreational marijuana use on the grounds that it was causing law enforcement or other problems in their own states.
Attorneys general in the four battleground states criticized the Texas filing as factually wrong, lacking substance and eroding confidence in American democracy.
“With all due respect, the Texas Attorney General is constitutionally, legally and factually wrong about Georgia,” Katie Byrd, spokeswoman for the Georgia attorney general’s office, said in a statement. Georgia Attorney General Chris Carr is a Republican.
Attorneys general Nessel, Josh Shapiro of Pennsylvania and Josh Kaul of Wisconsin — all Democrats — issued a joint statement calling the effort an attempt to “mislead the public and tear at the fabric of our Constitution.”
“It’s well past time for the president and our fellow states and elected officials to stop misleading the public about this year’s election and to acknowledge that the results certified in our states reflect the decisions made by the voters in a free, fair, and secure election,” they stated.
Stephen Vladeck, a constitutional law professor at the University of Texas, tweeted: “It looks like we have a new leader in the ‘craziest lawsuit filed to purportedly challenge the election’ category.”
Richard Hasen, an election law expert at the University of California at Irvine, called the filing a “news release masquerading as a lawsuit” in a blog post that outlined his view of why the action would not succeed.
While Tuesday’s “safe harbor” deadline seemed to mark a turning point, Trump’s legal team rejected that view.
“The ‘Safe Harbor Deadline’ is a statutory timeline that generally denotes the last day for states to certify election results,” the Trump campaign said in statement attributed to lawyers Rudolph W. Giuliani and Jenna Ellis. “However, it is not unprecedented for election contests to last well beyond December 8.”
“Despite the media trying desperately to proclaim that the fight is over, we will continue to champion election integrity until legal vote is counted fairly and accurately.”
But Sen. Patrick J. Toomey (R-Pa.) on Tuesday denounced Trump’s efforts to overturn Biden’s election win, calling the president’s actions “completely unacceptable.”
Toomey, who recently announced that he will not seek reelection in 2022, made the comments in an interview with the Philadelphia Inquirer.
“The president should give up trying to get legislatures to overturn the results of the elections in their respective states,” the senator told the newspaper.
Toomey, who has congratulated Biden on his win, added that he spoke with the president-elect by phone last week and that the two had “a very pleasant conversation.”
But he also appeared to blame Democrats, in part, for many Republican voters’ refusal to accept the election results, arguing — without offering evidence — that those voters would be less likely to believe Trump’s false claims if Democrats and the media had not sharply criticized the president over the past four years.
“A lot of Republicans across the commonwealth and across the country are sympathetic to some of the allegations being made by the president because they’ve witnessed the way he’s been treated for the last four years by the left and the press,” Toomey said.
Anne Gearan, Rosalind S. Helderman, Aaron Schaffer and Felicia Sonmez contributed to this report.