The mother of all long-shot legal challenges to the 2020 presidential election was launched earlier this week by Texas attorney general Ken Paxton. It asks the U.S. Supreme Court to grant an emergency order invalidating the results in Georgia, Michigan, Pennsylvania, and Wisconsin, based on highly dubious “facts” about mail-ballot rules. It also relies on a very controversial concurring opinion in the very controversial 2000 Bush v. Gore decision. The suit calls for “review and ratification” of the results by the (Republican-controlled) state legislatures of all four states.
Here’s what preeminent election-law expert Rick Hasen had to say about Paxton’s suit:
My view in brief: This is a press release masquerading as a lawsuit. Texas doesn’t have standing to raise these claims as it has no say over how other states choose electors; it could raise these issues in other cases and does not need to go straight to the Supreme Court; it waited too late to sue; the remedy Texas suggests of disenfranchising tens of millions of voters after the fact is unconstitutional; there’s no reason to believe the voting conducted in any of the states was done unconstitutionally; it’t too late for the Supreme Court to grant a remedy even if the claims were meritorious (they are not).
What utter garbage. Dangerous garbage, but garbage.
Sadly, 17 Republican state attorneys general have signed onto Paxton’s petition, which has virtually no chance of success and will simply make the conservative Supreme Court majority look more nonpartisan and responsible than it actually is when they reject it. It’s unlikely the intended beneficiary, Donald Trump, has a clue about the legal issues involved (this is the man who once claimed Article II of the Constitution gave him “the right to do whatever I want.”) But because this is a Texas petition, Trump has asked the junior senator from that state, Ted Cruz, to argue the case before the Supreme Court should the Court agree to hear it. As it happens, Cruz got some experience appearing before the justices as his state’s solicitor general before he was elected to the Senate.
Not all of Cruz’s Republican colleagues are falling in line:
The extremely low quality of the suit will incline the Court to dismiss it out of hand. But as Ilya Somin noted at the libertarian-ish Volokh Conspiracy blog, as a complaint by one state against others, it falls within the original jurisdiction of the Supreme Court as distinguished from most cases that are appeals from lower-court decisions. So it might get at least a cursory hearing:
[I]t could still deal with it in a short per curiam opinion, and does not necessarily have to go through extensive briefing and oral argument. There is no statute or constitutional rule requiring the latter.
At the risk of dignifying Paxton’s suit, I half-wish arguments are ordered and Cruz gets humiliated as even conservative justices mock his state’s claims. Cruz might even consider that an acceptable experience in exchange for proving he is willing to put himself on the line for his lord and master even as he seeks to overturn a democratic election.