Right-wing media are celebrating the novel lawsuit from Texas Attorney General Ken Paxton — now supported by President Donald Trump as well as other Republican state attorneys general across the country — actually suing four swing states carried by President-elect Joe Biden and asking the Supreme Court to throw out their vote results over changes that had been made to mail-in ballot procedures.
The suit, if it had any realistic possibility of succeeding (which it likely does not) could be the last gasp of the Trump campaign’s specific plan, aided by right-wing media spreading false claims about mass voter fraud, to throw out the results in key swing states through an obscure maneuver by which new slates of Electoral College delegates would be selected not by the voters, but by the Republican-controlled legislatures in those states.
University of California law professor Rick Hasen describes the suit as “a press release masquerading as a lawsuit” and “utter garbage. Dangerous garbage, but garbage.” University of Texas law professor Steve Vladeck calls it “mostly a stunt — a dangerous, offensive, and wasteful one, but a stunt nonetheless.”
For example, Paxton’s official Supreme Court filing claims that administrative changes to mail-in voting laws, arrived at through court rulings or executive decisions, caused a constitutional harm because “in Defendant States, Democrat voters voted by mail at two to three times the rate of Republicans.” (Polling this year indicated that Democratic-leaning voters had become more interested in the option of voting by mail, as a result of the coronavirus pandemic — while polls also showed that Democrats were more likely to take COVID-19 seriously than were Republicans.)
While the Supreme Court has “original jurisdiction” to immediately take suits between two states rather than having to work through lower courts and an appeals process, the court typically would only take up historical cases involving boundary disputes, or even modern cases over water rights. Such examples involve areas of material contention between the states involved for which the Supreme Court would be the logical place to have the questions resolved. But matters of one state objecting to the policies and political outcomes in another state — such as one state claiming that it is damaged by another state’s election result — do not make the cut. (And the Supreme Court just rejected without any comment another Republican lawsuit, which sought to throw out all the mail-in votes in Pennsylvania.)
And another key point: Paxton is currently under FBI investigation, The Associated Press has detailed, after members of his own staff raised alarms that he was allegedly “using his office to help a wealthy donor with a troubled real estate empire who also hired a woman with whom the married Paxton allegedly had an affair.” As a result, some are speculating that Paxton is really playing to “an audience of one” — that is, to Trump himself — and that he might be angling for a preemptive presidential pardon.
For his part, Paxton told the local NBC affiliate in Austin that he’s had “no discussions” about a pardon. But as it is, he’s got an avid new following among right-wing media hosts who have brought him on to hype his attempt at overturning the 2020 election result.