US President Donald Trump waves upon arrival, alongside Attorney General of Texas Ken Paxton (L) in Dallas, Texas, on June 11, 2020. (Photo by Nicholas Kamm / AFP) (Photo by NICHOLAS KAMM/AFP via Getty Images)
December 10, 2020
Today more than half of the Republicans in the House of Representatives signed onto Texas’s lawsuit asking the Supreme Court to overturn the results of the 2020 election and install Trump, rather than the legitimately elected Joe Biden, into the White House.
Democrat Biden won the election by more than 7 million votes and by 306 to 232 electoral votes. Trump has lost 55 of the 56 court cases he has brought to change the election’s outcome, and all 50 states have certified their election results. This election is not close; attempts to overturn it reject the central concept of democracy: that voters choose their leaders.
The story is this: Texas’s Attorney General Ken Paxton is asking the Supreme Court to hear an original case between the states—which it can do, but it’s rare—arguing that Texas was harmed by voting procedures in Georgia, Michigan, Wisconsin, and Pennsylvania. Essentially, Paxton is arguing that mail-in voting in those states, which Democrats used more extensively than Republicans did after Trump insisted it was insecure, stepped on Texans’ rights. This will be a hard sell.
If the Supreme Court does say Texas can sue, Paxton is hoping that 5 justices will then decide to toss out the electoral votes—but not the votes in the downballot races– from those states. This would take away Biden’s victory in the Electoral College, handing the election to Trump.
After Texas filed the lawsuit, Trump filed a request to join it.
This is a crazy lawsuit. As Senator Mitt Romney (R-UT) said: “It’s just simply madness…. The idea of supplanting the vote of the people with partisan legislators is so completely out of our national character that it’s simply mad…. [T]his effort to subvert the vote of the people is dangerous and destructive of the cause of democracy.” University of Texas Law School Professor Steve Vladeck was more succinct: “In a nutshell the President is asking the Supreme Court to exercise its rarest form of jurisdiction to effectively overturn the entire presidential election.”
It is possible—likely, even—that Paxton is advancing this nonsense because he has been under indictment since 2015 for securities fraud, is now under investigation by the FBI for bribery and abuse of office, and is hoping to impress Trump enough to get a presidential pardon. Just today, the FBI issued at least one subpoena for records from Paxton’s office. Knowing that this lawsuit has virtually no chance of winning, he could file it and win points with Trump while also knowing it would go nowhere.
But this moment has grown far beyond Paxton’s lawsuit into a fight over the future of the Republican Party and, ultimately, over the future of democracy.
States have squared off on both sides of Paxton’s lawsuit. Last night, seventeen other states supported the suit to hand the election to Trump, including Missouri, Alabama, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and West Virginia. Later, Arizona joined them.
Today, the four states named in the suit made it clear they are standing up for democracy. Pennsylvania’s brief notes that Trump has “flooded” the courts “with frivolous lawsuits aimed at disenfranchising large swaths of voters and undermining the legitimacy of the election.” Adding to “the cacophony of bogus claims,” Texas is trying to throw out four state elections because it doesn’t like their results. Its demand “is legally indefensible and is an affront to principles of constitutional democracy.” The brief warns, “Texas’s effort to get this Court to pick the next President has no basis in law or fact. The Court should not abide this seditious abuse of the judicial process, and should send a clear and unmistakable signal that such abuse must never be replicated.”
“[T]his case is not ordinary,” the Wisconsin brief says. “Texas is asking this Court to overturn the will of the people of Wisconsin—and the nation—based on meritless accusations of election fraud. If this Court agrees to do so, it will not only irreparably harm its own legitimacy, but will lend fuel to a disinformation campaign aimed at undermining the legitimacy of our democracy.”
Twenty-three Democratic-led states and territories, along with the Republican Attorney General of Ohio, Dave Yost, today signed a brief supporting the four states Texas is attacking. The District of Columbia, California, Colorado, Connecticut, Delaware, Guam, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, U.S. Virgin Islands, and Washington all backed the states whose votes Texas is trying to throw out.
But six states—Missouri, Arkansas, Louisiana, Mississippi, South Carolina, and Utah—joined Texas’s lawsuit today. Members of the Pennsylvania General Assembly filed a brief supporting Texas and Trump, signing on to the idea of taking the vote away from their own people.
Then the 106 Republican members of Congress jumped aboard the lawsuit, signing a brief in support of it. Trump worked the phones and enlisted Representative Mike Johnson (R-LA) head of the Republican Study Committee, the party caucus of social conservatives in the House, to hold members’ feet to the fire. Johnson sent around an email saying that Trump had “specifically asked me to contact all Republican Members of the House and Senate today and request that all join on to our brief.” Johnson noted that Trump “will be anxiously awaiting the final list to review,” in order to see who was on his team and who was not. Only ninety House Republicans refused to sign.
What on earth is going on?
First: Trump is throwing at the wall anything he can in hopes of staying in office. The more chaos it creates, the happier he is. The lawsuit crisis has, for example, muted the story that at least 2,923 Americans died today of Covid-19, and 223,570 cases were reported, a 28% increase in the weekly average of cases since two weeks ago.
It has also diverted attention from the fact that there is no deal, and no real sign of a deal on a coronavirus relief bill. A bipartisan group of senators has managed to hammer out a $908 billion deal but Republicans refuse to allow its $160 billion for aid to state and local governments and Democrats refuse to agree to shield businesses from liability for coronavirus injuries. The bipartisan group tried to put the two things together, but Senate Majority Leader Mitch McConnell says that’s a non-starter. Meanwhile, 26 million Americans say they don’t have enough to eat.
Second: There is a war underway for control of the Republican Party. While a losing incumbent president usually loses influence in the party, Trump intends to continue to call the shots. He wants to run again in 2024, or at least to anoint a successor, rather than letting the Republican National Committee pick a presidential candidate. There is a struggle going on to control the RNC and, as well, to figure out who gets control of the lists of supporters Trump has compiled. Trump also controls a lot of the party’s money, since he has been out front as its fundraiser without a break since he decided to run for office. He was the first president ever to file for reelection on the day of his inauguration, permitting him to hold “rallies” and to raise money throughout his presidency.
So Republican lawmakers are willing to swear loyalty to him, either because they want to attract his voters in future elections, or because they want access to the cash he can raise, or both. They no longer defend traditional policy positions; they defend Trump.
This loyalty requires contortions. In Georgia, the Republican Georgia Attorney General Chris Carr called the Texas lawsuit “constitutionally, legally and factually wrong.” But Georgia’s two senators, Republicans David Perdue and Kelly Loeffler, have backed it. The senators are facing a runoff election in January against Democrat challengers Jon Ossoff and the Reverend Raphael Warnock, and they need Trump’s support. So they are taking a stand against their own voters. So are nearly half of Georgia’s Republican congressional delegation, despite the fact that this position logically would overturn their own elections.
Third: Texas’s lawsuit and the Republican Party’s embrace of it is an unprecedented attempt to destroy the very foundation of our democracy. Since the 1980s, Republican leaders have managed to hold onto power by suppressing votes, promoting disinformation, gerrymandering states, gaming the Electoral College, and stacking the courts.
Now, so unpopular that even gaming the mechanics of our system is not enough, they have abandoned democracy itself.
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