“We will be INTERVENING in the Texas (plus many other states) case. This is the big one. Our Country needs a victory!” tweeted the soon-to-be-ex-president of the United States. A filing at the Supreme Court soon followed.
That’s because Trump and his allies have lost just about every lawsuit they’ve brought to try to keep him in office. By one Democratic election lawyer’s count, they have just one win and 55 losses to show for their efforts (a ratio that would be even more lopsided if he counted multiple losses in each case). Adding insult to injury, the Trumpistas’ solitary victory was a piddling, technical one that affected just a tiny number of ballots, nowhere near enough to change the result. Sad!
Trump and his litigation boosters have lost every which way, and everywhere. In state courts and federal courts. In trial courts and appellate courts, intermediate and supreme. Before Democratic judges and Republican ones. In Pennsylvania, Georgia, Michigan, Wisconsin, Arizona and Nevada — every state that could possibly matter. On substantive grounds and procedural ones, on the facts, and on the law.
They’ve already lost a case in the U.S. Supreme Court — and are about to lose there again very, very soon.
It’s hard to imagine that any alliance of litigants and lawyers has ever lost more cases for more reasons — and in less time — than this sorry bunch has.
Their problem is they have nothing to sue about, and never did. The words of a Trump-appointed member of the federal appeals court in Philadelphia pretty much sum things up: “Calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”
And time’s up. All the contested states have certified their Biden-Harris slates of electors before the deadline set by federal law. That means the certifications “shall be conclusive, and shall govern in the counting of the electoral votes.” The electors will meet and vote in their respective states on Monday. The result will be Biden 306, Trump 232. A landslide, according to Trump.
Yet now we have what Trump calls the “big one,” the litigation Trump proclaims will turn it all around.
It’s the big one, all right, the biggest farce of all. It’s a case the state of Texas brought on Monday, directly in the Supreme Court, against Pennsylvania, Georgia, Michigan and Wisconsin. In a move that says more about the legal judgment (poor) and the moral fiber (absent) of their attorneys general than it does about the merits of the case, 17 states have now filed a brief in support of Texas, along with Trump. More than half the House Republicans — 106 — also joined the follies.
Brought by Texas’s ethically challenged attorney general, Ken Paxton, the case is legally preposterous. By Texas’s own admission, it’s “challenging” the other states’ “administration of the 2020 election.” No constitutional provision, no statute and no principle of law gives one state the standing to challenge another state’s handling of an election. In our system, Texas isn’t the boss of Pennsylvania. Allowing such suits would invite a multistate free-for-all every time a presidential election is held.
Beyond that, there’s no reason to believe the Supreme Court, which has jurisdiction to hear cases between states, will entertain this one. It considers that “original” jurisdiction — its power to act as the first court to hear a case, and not on appeal — to be discretionary. And it exercises that discretion sparingly, because it’s not set up to be a trial court, let alone in such (supposedly) exigent circumstances. When matters can be resolved by suits involving parties other than states, the court tends to decline to hear them. Trump’s intervention motion thus undercuts the rationale for involving the high court — it shows the disputes could be resolved in other cases in other courts, as in fact they have been. Another brilliant move by his “elite” legal “strike force.”
What of the Texas suit’s merits? It has none. It’s a recycling of failed claims. Whining about poll-watchers being excluded, nonsense about “mysterious late night dumps of thousands of ballots,” fantasies about rigged Dominion voting machines — a Cuisinart of allegations rejected by courts from Philadelphia to Carson City.
Texas’s proposed complaint even has a claim that, given Trump’s middle-of-election-night lead in the defendant states, there was less than a “one in a quadrillion” chance that Biden should have won. Do they really think the justices of the Supreme Court are that stupid?
And what relief does the Texas suit seek? For the court to declare that the 62 electoral votes of Pennsylvania, Georgia, Michigan and Wisconsin “cannot be counted.” That’s a quote.
That any member of any bar, let alone a member of the Supreme Court bar, could file such flimsy tripe in any court, let alone the Supreme Court, is an embarrassment to the legal profession. For public officials such as Paxton and his fellow Republican attorneys general to call for the wholesale disenfranchisement of the people of four states is an affront to the rule of law, an insult to an independent judiciary and a contempt of democracy.
The big fraud of 2020 didn’t take place in any voting booth, drop box or tabulation center. It happened after the election, at the presidential lectern, at news conferences and in legal briefs orchestrated to support the fiction that Donald Trump won. History will record that the scam didn’t succeed.
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