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From the December 10, 2020, edition of Fox Business' The Evening Edit
ELIZABETH MACDONALD (HOST): Joining me now is former U.S. Attorney Brett Tolman, back with us. Brett, it is great to see you again. How do think the Supreme Court will rule on the --
BRETT TOLMAN: Great to see you, Liz.
MACDONALD: Good to see you. How do you think the Supreme Court is going to rule on the Texas lawsuit alleging that the four battleground states were unconstitutional in how they conducted their 2020 vote?
TOLMAN: Look, it's a different lawsuit than what we've seen. This is a conflict between states and the Supreme Court is the only court that can hear this. So there is -- there's more motivating them I'm sure to hear the case but it's still an uphill battle because the Supreme Court has been somewhat reluctant, especially when they have significant standing issues. And -- and what I mean by that is there's a question as to whether one state can try to enforce what's happening in another state but the reality is there are some good arguments. This is a well-written lawsuit. And it's very, very likely that the Supreme Court is giving it very serious consideration.
MACDONALD: Yeah. We've got Republican attorneys general in six states, Missouri, Arkansas, Louisiana, Mississippi, South Carolina, and Utah joining the Texas lawsuit. 106 House Republicans filing friend of the court briefs. What you're saying is it's a challenge based on the Constitution. Texas is saying that the swing state officials unconstitutionally changed voting rules when only the -- the U.S. Constitution only gives state legislatures the authority to make changes to the state election laws, not state judges, not other state officials. So --
TOLMAN: That's right.
MACDONALD: AG Paxton says he does have -- The Texas attorney general Ken Paxton says he does have standing to sue because the way they conducted their vote undercut the power of the vote in Texas. Not sure how that was -- that power of the vote is undercut. That's really the issue, right?
TOLMAN: Right. This is -- and it's a good argument by the attorney general in Texas. And here's in essence what he's arguing. He's saying that the Due Process Clause of the 14th amendment and the Equal Protection Clause are protecting other states that on a national election rely upon the validity of the other states acting in a constitutional manner and so he is not necessarily asking for the Supreme Court to review and overturn this election, but instead to look at the fact that unconstitutional effort or rules were passed by those states which now impacts their protection in this union. So it's a -- it's a clever argument and it may work.
MACDONALD: Yes, it's really interesting what he's saying. In other words, Texas is saying we followed the rules, the Constitution.
TOLMAN: That's right.
MACDONALD: These other states did not. But you know, Supreme Court Chief Justice John Roberts and Justice Elena Kagan have said that state judges do have the final word in how the state constitutions are applied to election rules, that the courts ought to supervise state legislatures who write the voting laws in order to protect constitutional rights. So, wow, this is going to be a deep, intense look at how --
TOLMAN: It is.
MACDONALD: -- the states are allowed to conduct their vote, and at -- and how the U.S. Constitution is abided by. Your final word?
TOLMAN: That's right. I mean, Liz, you hit the right issue there on that prior ruling by the Supreme Court. But that was a fractured court. It didn't also address squarely the fact that the Constitution of those states may have been violated, so we'll see. This one's going to be interesting and the key is probably going to be those conservatives on the Supreme Court.
MACDONALD: Yeah, we're going to watch it. We're going to watch Justice Amy Coney Barrett. I mean, people are saying that --
TOLMAN: That's right.
MACDONALD: She could be a vote here and impact here. We'll see. You know, she's a fair, you know, judge, so we're going to watch how this comes down.
Not only is the lawsuit preposterous, but contrary to Tolman's assertion, it explicitly attempts to overturn the results of the election by barring the actual results from being used to appoint presidential elections to the Electoral College -- that is, overturning the actual results.
