The Real Threat of Trump's Latest Doomed Plea to the Supreme Court
On Wednesday afternoon, 17 states endorsed Texas Attorney General Ken Paxton’s doomed lawsuit asking the Supreme Court to nullify millions of votes and hand Donald Trump a second term. Trump himself then intervened in a brief riddled with debunked conspiracy theories and at least one outright factual error. The odds that the Supreme Court will take this case, let alone rule for the plaintiffs, remain at right around zero. But the dispute remains noteworthy as a preview of the conservative legal movement’s direction after Trump leaves office. The president will leave the White House on Jan. 20. The conservative attorneys who have become radicalized under his influence, however, will remain in power across the country.
This case, Texas v. Pennsylvania, is so ridiculous that it is not worth exploring its legal claims in any depth. Paxton’s suit asks the Supreme Court to throw out every vote in four states won by Joe Biden—Georgia, Michigan, Pennsylvania, and Wisconsin—then direct each state’s legislature to declare Trump the winner. This act would constitute the single biggest incident of voter nullification in American history. Paxton alleges that all four states illegally expanded mail voting, permitted egregious fraud, then concealed evidence that Democrats stole the election. There is no basis in truth for his factual claims and no basis in law for his legal theories. Indeed, it seems likely that Paxton, who is reportedly under FBI investigation for corruption, is more interested in obtaining a preemptive pardon from Trump than presenting a coherent legal argument.
What’s not as clear is why 17 state attorneys general, all Republican, decided to join Paxton’s humiliating crusade. Their brief, spearheaded by Missouri Attorney General Eric Schmitt, parrots Paxton’s false assertions about widespread fraud, urging SCOTUS to take up the case. They accuse the four defendant states of repeatedly violating the Constitution by allowing more people to vote by mail during the pandemic. And they claim that, by allowing voters to cure faulty absentee ballots, the states violated the equal protection clause. To remedy this alleged problem, they suggest, the Supreme Court must wipe out every vote cast in all four states, clearing the way for each state legislature to assign their electors to Trump.
Why did a third of the nation’s attorneys general decide to use the power of their offices to aid an overt assault on democracy? Obviously, they are Republican politicians who would like to see Trump remain in the White House. But I suspect few, if any, have fallen prey to the delusion that Trump actually won the election. These lawyers run large agencies that deal with complex legal disputes every day; the job requires a level of competency that could not be met by someone suffering a complete break with reality. We should assume that these attorneys general are rational actors, politicians looking out for their own best interest. Like most Republican politicians, these attorneys general understand that they need the support of Trump voters to keep their jobs. Their brief is thus best seen as performative loyalty: GOP voters in these 17 states can rest assured that their attorneys general fought for Trump till the bitter end. Indeed, rejecting the reality of the presidential election results, which as of Wednesday have been certified by all 50 states and the District of Columbia, has fast become a litmus test for members of the Republican Party.
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