With his legal options dwindling and time running out before a key electoral college deadline, President Trump on Thursday ramped up pressure on the Supreme Court to help overturn Joe Biden’s victory, gaining the support of more than 100 congressional Republicans in the unprecedented assault on the U.S. election system.
By late afternoon, 106 GOP House members — a majority of the 196-member Republican caucus — had signed on to an amicus brief to support the Texas-led motion, among them Minority Whip Steve Scalise (La.) and Rep. Tom Emmer (Minn.), the chair of the National Republican Congressional Committee.
“78% of the people feel (know!) the Election was RIGGED,” Trump falsely declared in his Twitter post.
In fact, his campaign’s legal team has suffered more than three dozen defeats in federal and state courts, including the high court’s ruling Tuesday denying a motion to block Pennsylvania from certifying Biden’s win in that state.
Democrats denounced the last-ditch legal effort — filed this week by Texas Attorney General Ken Paxton, a staunch Trump supporter who attended the White House lunch — to negate 10.4 million votes in favor of Biden in Georgia, Michigan, Pennsylvania and Wisconsin.
The appeal to the Supreme Court came days before the statutory deadline Monday for electoral college representatives in each state to vote on final certification of the results and send them to Congress for ratification early next month. The justices could decide as soon as Friday whether to accept the case, which seeks to take advantage of the allowance that lawsuits between states may be filed directly at the Supreme Court.
But officials in the targeted states said any claims in the filings have already been dismissed in lower courts. In all, 20 states, along with the District of Columbia, Guam and the U.S. Virgin Islands, filed a motion calling on the high court to reject the Texas request.
“Texas’s effort to get this court to pick the next President has no basis in law or fact,” Pennsylvania Attorney General Josh Shapiro (D) said in a court filing that labeled the case a bid to construct a “surreal alternate reality.”
He added that the court “should not abide this seditious abuse of the judicial process, and should send a clear and unmistakable signal that such abuse must never be replicated.”
Each of the targeted states filed an objection to Texas’s intentions and, taken together, offered the court a wide range of reasons not to get involved: that Texas lacks legal standing to file such a complaint; that the court shouldn’t get involved in the ultimate political question, a presidential election; that Texas has not shown there were any constitutional violations; that the claims come too late; and that its filing simply recycles allegations that have already been rejected by state and local courts.
Connecticut Attorney General William Tong, who joined the states opposing the lawsuit, called the case unconstitutional and said that Americans “cast their ballots in a free and fair election. Their decision must be respected.”
Trump has waged relentless attacks on the U.S. election system, beginning on election night and continuing even as Biden has run up a margin of victory of more than 7 million votes nationwide, along with an electoral college advantage of 306 to 232, matching Trump’s 2016 advantage over Hillary Clinton.
“The election was not close. There was no evidence of fraud. The states have certified the results,” Clinton tweeted. “Yet Trump continues to try to overturn the election at the expense of our democracy. The emperor has no clothes. Republican electeds who continue to humor him have no spines.”
The president has continued to promote baseless conspiracy theories about the election on a daily basis, calling the Texas case “the big one” this week. On Thursday, he retweeted calls from GOP members of Congress, led by Rep. Lance Gooden (Tex.), for U.S. Attorney General William P. Barr to appoint a special counsel to investigate “election irregularities.”
Barr angered the president last week when he told the Associated Press that the Justice Department has uncovered no evidence of widespread voter fraud that could overturn the election.
Legal experts predicted that the Supreme Court will quickly dismiss the Texas filing.
Edward B. Foley, an election law professor at Ohio State University, said the court is likely to view the Texas filing as far different from the 2000 election dispute between George W. Bush and Al Gore, which was decided after the Supreme Court ruled in Bush’s favor on a small number of disputed ballots in Florida.
The court would be “especially sensitive to making sure it isn’t beholden to political pressure” from Trump, Foley said, suggesting a bigger concern over the president’s relentless assault on the election system is that it has won support from a significant number of Republicans.
The Texas effort “will not make a difference who is inaugurated, but the optics look very different depending on how many Republicans object to Biden’s election on the record,” Foley said.
White House aides said that the state GOP attorneys general who met with Trump were in Washington for a preplanned meeting not affiliated with the White House and that the lunch had been in the works for weeks.
The group “discussed issues important to their citizens and the country, and ways to continue to advance the shared federal-state partnership,” White House spokesman Judd Deere said.
Trump has openly sought to pressure the court to side with his campaign, suggesting before the election that one reason he was moving quickly to name Justice Amy Coney Barrett to fill the vacancy after Ruth Bader Ginsburg’s death in September was to be sure there was a strong conservative majority in anticipation of an extended legal battle over the outcome.
His strategy has put Barrett — who declined to say during her Senate confirmation hearings whether she would recuse herself from election challenges involving the president — in a difficult position. She participated earlier this week when the court denied a request for an injunction against Pennsylvania’s election results. Neither she nor Trump’s other nominees on the court, Justices Neil M. Gorsuch and Brett M. Kavanaugh, voiced dissent from the one-sentence, unsigned order.
“WISDOM & COURAGE!!!” Trump tweeted Thursday, repeating a mantra he has used to imply that judges and justices must summon inner fortitude to stand up for him.
Yet Trump’s campaign has run into resistance even from some state-level Republicans. Ohio, a state Trump won, said it was not supporting Texas. The Constitution does not give courts the power to dictate how states exercise their constitutional authority, its attorney general said in a filing.
Georgia’s Republican attorney general, Christopher M. Carr, said in his filing that the vote in his state was counted three times, “including a historic 100 percent manual recount.”
The count has been defended against all lawsuits, he said, and Georgia has won each one.
“Texas nevertheless asks this court to transfer Georgia’s electoral powers to the federal judiciary,” Carr wrote. “Respect for federalism and the constitutional design prohibits that transfer of power, but this court should never even reach that issue.”
Instead, the court should simply reject the request to file a complaint as inconsistent with the Supreme Court’s rules, Carr said.
Joshua A. Douglas, a law professor at the University of Kentucky, said Trump’s pressure will have no effect with the justices, calling it “a loser of a case” that he expect the court to “reject quite easily — probably with a one-sentence order.”
But he warned that the effort from Trump and his GOP allies has, in his view, made clear that Republicans in Congress, if they held big enough majorities in both chambers, would plausibly attempt to “undo the will of the voter when they count the electoral college votes on Jan. 6.”
With Democrats controlling the House, he added, such a scenario is impossible this year, “but we are only a few democracy-conscious representatives away from that potentially occurring. That itself is extremely concerning for the longer-term health of our democracy.”
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